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term, jointure, is now usually confined to that joint estate, which by virtue of the statute 27 Hen. VIII. c. 10. is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman's dower.b

In unfolding this title, and the two remaining ones in the present chapter, we will first inquire, how these estates may be created; next, their properties and respective incidents; and lastly, how they may be severed or destroyed.


The creation of an estate in joint tenancy depends on the wording of the deed or devise, by which e tenants claim title; for this estate can only arise by purchase or grant, that is, by the act of the parties, and never by the mere act of law.* Now, if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if a estate be granted to A and B and their heirs, this makes them immediately joint tenants in fee of the lands. For the law interprets the grant so as to make all parts of it take effect, which can only be done by creating an equal estate in them both. As therefore the grantor has thus united their names, the law gives them a thorough union in all other respects. For, †

2. The properties of a joint estate are derived from it's unity, which is fourfold; the unity of interest, the unity of title, the unity of time, and the unity of possession: or, in other words, joint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession.?

[181] First, they must have one and the same interest. One joint tenant cannot be entitled to one period of duration or quantity of interest in lands, and the other 8 Previously spelt "enquire."

b See pag. 137.

*-* Quoted, 6 Cush. 160; 3 McCord, 155; 6 Heisk. 286.

† Cited, 5 Conn. 365, substituting tenants in common for joint tenants. - Quoted, 1 Const. S. C. 52; 38 Vt. 267.

? Cited, 47 N. H. 227; 90 Am. Dec. 573,

to a different; one cannot be tenant for life, and the other for years: one cannot be tenant in fee, and the other in tail. But, if land be limited to A and B for their lives, this makes them joint tenants of the freehold; if to A and B and their heirs, it makes them joint tenants of the inheritance. If land be granted to

A and B for their lives, and to the heirs of A; here A and B are joint tenants of the freehold during their respective lives, and A has the remainder of the fee in severalty or, if land be given to A and B, and the heirs of the body of A; here both have a joint estate for life, and A hath a several remainder in tail. Secondly, joint tenants must also have an unity of title: their estate must be created by one and the same act, whether legal or illegal; as by one and the same grant, or by one and the saine disseisin.' Joint tenancy cannot arise by descent or act of law; but merely by purchase, or acquisition by the act of the party: and, unless that act be one and the same, the two tenants would have different titles; and if they had different titles, one might prove good, and the other bad, which would absolutely destroy the jointure. Thirdly, there must also be an unity of time: their estates must be vested at one and the same period, as well as by one and the same title. As in case of a present estate made to A and B; or a remainder in fee to A and B after a particular estate; in either case A and B are joint tenants of this present estate, or this vested remainder. But if, after a lease for life, the remainder be limited to the heirs of A and B; and during the continuance of the particular estate A dies, which vests the remainder of one moiety in his heir; and then B dies, whereby the other moiety becomes vested in the heir of B: now A's heir and B's heir are not joint tenants of this remainder, but tenants in common; for one moiety

c Co. Litt. 188.

d Litt. 277.

e Ibid. 285.

1 Ibid. 278,





vested at one time, and the other moiety vested at
another. [182] Yet, where a feoffment was made to
the use of a man, and such wife as he should after-
wards marry, for term of their lives, and he afterwards
married; in this case it seems to have been held that
the husband and wife had a joint estate, though vested
at different times: because the use of the wife's estate
was in abeyance and dormant till the intermarriage;
and, being then awakened, had relation back, and took
effect from the original time of creation. Lastly, in
joint tenancy, there must be an unity of possession.
#Joint tenants are said to be seised per my et per tout,
by the half or moiety, and by all [see note 39, page
315]; that is, they each of them have the entire posses-
sion, as well of every parcel as of the whole.i* They
· have not, one of them a seisin of one half or moiety,
and the other of the other moiety; neither can one be
exclusively seised of one acre, and his companion of
another; but each has an undivided moiety of the
whole, and not the whole of an undivided moiety.9t
g Co. Litt. 188.

h Dyer. 340. 1 Rep. 101,

i Litt. 288. 5 Rep. 10.

k Quilibet totum tenet et nihil tenet; scilicet, totum in communi, et nihil separatim per se. Bract. 1. 5. tr. 5. c. 26.


9 Ninth edition adds: "And therefore, if an estate in fee be given to a man and his wife, they are neither properly joint tenants, nor tenants in common: for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout et non per my; the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.t¶ [t Litt. 665. Co. Litt. 187. Bro. Abr. t. cui in vita. 8. 2 Vern. 120. 2 Lev. 39.1'

- Quoted, 26 Pa. St. 401.

- Quoted, 16 Johns. 115; 1 Cowen, 96; 6 Wils. & S. 322; 40 Am. Dec. 567; 49 Md. 411; 10 Ill. 124; 76 Ill. 540; 1 Munf. 114; 4 Am. Dec. 538; 1 Munf. 392; 7 Yerg. 319; 27 Am. Dec. 511.

I Cited, 15 Wend. 617; 47 N. H. 227; 4 Har. (N. J.) 154; 1 McCart. 40; 2 McCart. 381; 7 Yerg. 319; 27 Am. Dec. 510; 4 Sneed, 692; 70 Am. Dec. 271; 24 Miss. 36; 57 Am. Dec. 159; 50 Miss. 535; 64 Ga. 335; 36 Ala. 734; 6 Fla. 476; 37 Ind. 398; 21 Ind. 40, 41; 57 Ind. 414; 12 Ala. 48; 16 Vt. 312; 47 Ill. 427; 95 An. Dec. 503; 14 Mich. 93; 90 Am. Dec. 226; 58 Md. 21; 87 N. C. 334.

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+ Cited, 26 Pa. St. 399; 2 McCart. 381; 65 Cal. 452; 13 N. Y. 322; 64 Am. Dec. 558; 72 Ala. 399.

Upon these principles, of a thorough and intimate union of interest and possession, depend many other consequences and incidents to the joint tenant's estate. If two joint tenants let a verbal lease of their land, reserving rent to be paid to one of them, it shall enure to both, in respect of the joint reversion.1 If their lessce surrenders his lease to one of them, it shall also enure to both, because of the privity, or relation of their estate. On the same reason, livery of seisin, made to one joint tenant, shall enure to both of them;" and the entry, or re-entry, of one joint tenant is as effectual in law as if it were the act of both.. In all actions also relating to their joint estate, one joint tenant cannot sue or be sued without joining the other. But if two or more joint tenants be seised of an advowson, and they present different clerks, the bishop may refuse to admit either: because neither joint tenant hath a several right of patronage, but each is seised of [183] the whole: and, if they do not both agree within six months, the right of presentation shall lapse. But the ordinary may, if he pleases, admit a clerk presented by either, for the good of the church, that divine service may be regularly performed; which is no more than he otherwise would be entitled to do, in case their disagreement continued, so as to incur a lapse: and, if the clerk of one joint tenant be so admitted, this shall keep up the title in both of them; in respect of the privity and union of their estate. Upon the same ground it is held, that one joint tenant cannot have an action against another for trespass, in respect of his land; for each has an equal right to enter on any part of it. But one joint tenant is not capable by himself to do any act, which may tend to defeat or injure the estate of the other; as


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to let leases, or to grant copyholds: and, if any waste be done, which tends to the destruction of the inheritance, one joint tenant may have an action of waste against the other, by construction of the statute Westm. 2. c. 22. So, too, though at common law no action of account lay for one joint tenant against another, unless he had constituted him his bailiff or receiver," yet now by the statute 4 Ann. c. 16. joint tenants may have actions of account against each other, for receiving more than their due share of the profits of the tenements held in joint tenancy.

From the same principle also arises the remaining grand incident of joint estates; viz. the doctrine of survivorship: by which when two or more persons are seised of a joint estate, of inheritance, for their own lives, or pur auter vie, or are jointly possessed of any chattel interest, the entire tenancy upon the decease of any of them remains to the survivors, and at length to the last survivor; and he shall be entitled to the whole estate, whatever it be, whether an inheritance or a common freehold only [see note 40, page 313], or even a less estate.w* This is the natural and regular consequence of the union and entirety of their interest. The interest of two joint tenants [184] is not only equal or similar, but also is one and the same. One has not originally a distinct moiety from the other; but, if by any subsequent act (as by alienation or forfeiture of either) the interest becomes separate and distinct, the joint tenancy instantly ceases. But, while it continues, each of two joint tenants has a concurrent interest in the whole; and therefore, on the death of his companion, the sole interest in the whole remains to the survivor. For the interest, which the survivor originally had, is clearly

s 1 Leon. 234.

t 2 Inst. 403.

u Co. Litt. 200.
w Litt. 280, 281.

**Quoted, 12 W. Va. 466. Cited, 4 Ark. 608; 58 Tex. 425,

+-+ Quoted, 3 Rand. 182. Cited, 14 Wend. 337.

2 BLACKST.-26.

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