Sivut kuvina

mon may be

an estate in

[ocr errors]

but yesterday; so there is no unity of time. The only unity there is, is that of possession; and for this Littleton gives the true reason, because no man can certainly tell which part is his own: otherwise even this would be soon destroyed.

Tenancy in common may be created, either by the de- Tenancy in comstruction of the two other estates, in joint-tenancy and co-created by the parcenary, or by special limitation in a deed. By the de- destruction of struction of the two other estates, I mean such destruction joint-tenancy or as does not sever the unity of possession, but only the unity where there'is

no partition of title or interest: As, if one of two joint-tenants in fee made; alienes his estate for the life of the alienee, the alienee and the other joint-tenant are tenants in common; for they have now several titles, the other joint-tenant by the original grant, the alienee by the new alienation (9); and they also have several interests, the former joint-tenant in fee-simple, the alienee for his own life only. So, if one joint-tenant gives his part to A. in tail, and the other gives his to B. in tail, the donees are tenants in common, as holding by different titles and conveyances (r). If one of two parceners alienes, the alienee and the remaining parcener are tenants in common (s); because they hold by different titles, the parcener by descent, the alienee by purchase. So likewise, if there be a grant to two men, or two women, and the heirs of their bodies, here the grantees shall be joint-tenants of the life-estate, but they shall have several inheritances; because they cannot possibly have one heir of their two bodies, as might have been the case had the limitation been to a man and woman, and the heirs of their bodies begotten(t): and in this, and the like cases, their issues shall be tenants in common; because they must claim by different titles, one as heir of A., and the other as heir of B.; and those two not titles by *purchase, but descent. In short, whenever [ * 193 ] an estate in joint-tenancy or coparcenary is dissolved, so that there be no partition made, but the unity of possession continues, it is turned into a tenancy in common. A tenancy in common may

also be created by express or by express limitation in a deed : but here care must be taken not to deed,

[ocr errors]

(9) Litt. s. 293. (r) Ibid. s. 295.

(8) Ibid. 309. (t) Ibid. 283.

Or will.

insert words which imply a joint estate (22); and then if lands be given to two or more, and it be not joint-tenancy, it must be a tenancy in common. But the law is apt in its constructions to favour joint-tenancy rather than tenancy in common (u) (23); because the divisible services issuing from land (as rent, &c.) are not divided, nor the entire services (as fealty) multiplied, by joint-tenancy, as they must necessarily be upon a tenancy in common. Land given to two, to be holden the one moiety to one, and the other moiety to the other, is an estate in common (w); and, if one grants to another half his land, the grantor and grantee are also tenants in common (2): because, as has been before(y) observed, joint-tenants do not take by distinct halves or moieties; and by such grants the division and severalty of the estate is so plainly expressed that it is impossible they should take a joint-interest in the whole of the tenements. But a devise to two persons to hold jointly and severally, is said to be a joint-tenancy (); because that is necessarily implied in the word “jointly,” the word “ severally” perhaps only implying the power of partition : and an estate given to A. and B., equally to be divided between them, though in deeds it hath been said to be a joint-tenancy (a), (for it implies no more than the law has annexed to that estate, viz. divisibility (6),) yet in wills it is certainly a tenancy in common (C); because the devisor may be presumed to have meant what is most beneficial to both the devisees, though his meaning is imperfectly expressed. And this nicety in the wording

of grants makes it the most usual as well as the safest way, [ * 194 ] when a tenancy in common *is meant to be created, to add

express words of exclusion as well as description, and limit the estate to A. and B., to hold as tenants in common and

not as joint-tenants. Of the incidents As to the incidents attending a tenancy in common:

tenants in common (like joint-tenants) are compellable by (u) Salk. 392.

(z) Poph. 52. (w) Litt. s. 298.

(a) 1 Eq. Cas. Abr. 291. (x) Ibid. 299.

(6) 1 P. Wms. 17. (y) See p. 182.

(c) 3 Rep. 39; 1 Ventr. 32.

attending a tenancy in common,

(22) See ante, the conclusion of the note to p. 187.
(23) See ante, note last referred to.

the statutes of Henry VIII. and William III., before mentioned (d), to make partition of their lands; which they were not at common law.

They properly take by distinct moieties, and have no entirety of interest; and therefore there is no survivorship between tenants in common. Their other incidents are such as merely arise from the unity of possession; and are therefore the same as appertain to jointtenants merely upon that account: such as being liable to reciprocal actions of waste, and of account, by the statutes of Westm. 2, c. 22, and 4 Ann. c. 16, § 27. For by the common law no tenant in common was liable to account with his companion for embezzling the profits of the estate (e); though, if one actually turns the other out of possession, an action of ejectment will lie against him (f) (24). But, as

(d) Pag. 185 and 189.

(e) Co. Litt. 199.

(f) Ibid. 200.

(24) In the case of Fairclaim v. cases, confined to the same period. Shackleton, (5 Burr. 2607, 2608,) it (Marquis of Cholmondeley v. Lord seems to have been considered that

Clinton, 2 Jac. & Walk. 151, in the the perception of the whole profits of judgment upon which case all the an estate, for any length of time, by leading authorities are cited.) Even one tenant in common, could never in cases of fraud, courts of equity took operate as a disseisin of the other te- the statutes of limitation for their nant in common. But, not long guides in general. (Stackhouse v. afterwards, it was determined, in the Barnston, 10 Ves. 467 ; Bonney v. case of Doe v. Prosser, (Cowp. 218,) Ridgard, 1 Cox, 149 ; Beckford v. that the term “ actual ouster" did not Wade, 17 Ves. 97.) And the obnecessarily imply some act accompa- jection of length of time may be taken nied with force ; that a man might by demurrer, when a bill is so framed come in by rightful possession, yet as to be open to that mode of defence ; hold over adversely without a title ; but as the plaintiff's pleader will, of and that, if he did so, such holding course, generally take care this shall over might be equivalent to an actual not be the case, a plea is the more ouster.

usual mode of taking advantage of A plaintiff's right to recover in length of time in bar of a plaintiff's ejectment, after twenty years, was claim. (Foster v. Hodson, 19 Ves. taken away by the statute of limita- 184 ; Lord Shipbrook v. Lord Hinchtions of Henry VIII. And courts of inbroke, 13 Ves. 397; Hodle v. Heaequity have, at all times, upon gene- ley, 1 Ves. & Bea. 539.) ral principles of their own, even where Since this note was first published, there was no statutable bar, refused the statute of 3 & 4 Gul. IV. c. 27, relief to stale demands, where the has enacted that (with certain savings, party had slept upon his rights for a in cases of specified disabilities,) no great length of time : and where a bar

person shall make an entry or distress had been fixed by statute to the re- or bring an action to recover any rent medy at common law, the remedy in or land but within twenty years next a court of equity was, in analogous after the right accrued ; the 12th sec.

for other incidents of joint-tenants, which arise from the privity of title, or the union and entirety of interest, (such as joining or being joined in actions (g), unless in the case where some entire or indivisible thing is to be recovered (h),) these are not applicable to tenants in common whose interests are distinct, and whose titles are not joint but several.

Estates in common can only be dissolved two ways: 1. by which estates in common may By uniting all the titles and interests in one tenant, by pur

chase or otherwise; which brings the whole to one severalty: 2. By making partition between the several tenants in common, which gives them all respective severalties. For indeed tenancies in common differ in nothing from sole estates but merely in the blending and unity of possession. And this finishes our inquiries with respect to the nature of estates.

Of the modes


[blocks in formation]

tion of the act, as to the possession of same period within which an entry or
one tenant in common, has been al- distress might have been made, or an
ready adverted to, in note 5 to p. action brought to recover the land or
182 ; and the 24th section of the rent, if the claimant's title had been a
act limits suits in equity, for the legal one.
recovery of rent or land, to the




to form

The foregoing chapters having been principally employed of the title to in defining the nature of things real, in describing the tenures by which they may be holden, and in distinguishing the several kinds of estate or interest that may be had therein ; I come now to consider, lastly, the title to things real, with the manner of acquiring and losing it.

A title is thus defined by Sir Edward Coke (a), titulus Definition of est justa causa possidendi id quod nostrum est ; or, it is the means whereby the owner of lands hath the just possession of his property.

There are several stages or degrees requisite to form a of the requisites complete title to lands and tenements. We will consider plete title. them in a progressive order. I. The lowest and most imperfect degree of title consists 1. The naked

possession, or in the mere naked possession, or actual occupation of the actual occupaestate; without any apparent right, or any shadow or pre- tate. tence of right, to hold and continue such possession. This may happen, when one man invades the possession of another, and by force or surprise turns him out of the occupation of his lands; which is termed a disseisin, being a deprivation of that actual seisin, or corporal freehold of the lands, which the tenant before enjoyed. Or it may happen, that after the death of the ancestor and before the entry of the heir, or after the death of a particular tenant and before [ * 196 ] the entry of him in remainder or reversion, a stranger may contrive to get possession of the vacant land, and hold out

tion of the es


[blocks in formation]
« EdellinenJatka »