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 begottent 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 too not titles by purchase, [193] but descent. In short, whenever 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 limitation in a deed: but here care must be taken not to insert words which imply a joint estate; 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 it's constructions to favour joint tenancy rather than tenancy in common;"† because the divisible services issuing from land (as rent, etc.) 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; and, if one grants to another half his land, the grantor and grantee are also tenants in common: because, as has been before! 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 tenants. But a devise to two persons to hold jointly and severally, is a joint tenancy; because t Ibid. 283. w Litt. 298. x Ibid. 299. y See pag. 182 z Poph. 52. 9 Ninth edition inserts," said to be." *Cited, 40 Ala. 489. † Cited, 58 N. H. 532; 2 Johns. Cas. 389. 5 that is necessarily implied in the word "jointly," 5the 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 (for it implies no more than the law has annexed to that estate, viz. divisibility b), yet in wills it is certainly a tenancy in common; 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, when a tenancy in common [194] 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. As to the incidents attending a tenancy in common: +tenants in common (like joint tenants) are compellable by the statutes of Henry VIII. and William III., before-mentioned, 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 thereforo 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 joint tenants 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. For by the common law no tenant in common was liable to account with a 1 Equ. Cas. abr. 291. b 1P. Wms. 17. c 3 Rep. 39. 1 Ventr. 32. d 5 Previously, "even though the word 'severally 'seems to imply the direct reverse." *Cited, 13 Md. 190; 56 Am. Dec. 738; 75 N. C. 452, +-+ Quoted, 5 Cowen, 230. Cited, 47 N. H. 399; 17 N. Y. 213; 72 Am. Dec. 457. + Cited, 13 Wend. 347. 2 CLACKST.-27. his companion for embezzling the profits of the estate; though if one actually turns the other out of possession, an action of ejectment will lie against him, But, as 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, unless in the case where some intire or indivisible thing is to be recovered 1), these are not applicable to tenants in common, whose interests are distinct, and whose d titles are not joint but several.† Estates in common can only be dissolved two ways: 1. By uniting all the titles and interests in one tenant, by purchase 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. NOTES OF THE AMERICAN EDITOR TO CHAPTER XII. (38) Estates of any quantity four different ways, page 179. .... may be held in This does not mean, as certain critics have assumed for the sake of correcting Blackstone, that every estate can be held in all four such ways: nor does Blackstone say so. He certainly knew, for he has said as much elsewhere, that an estate less than fee cannot be held in coparcenary. The examples of his mistake commonly given, e. g., that joint tenancy cannot be taken by descent, or coparcenary by purchase, etc., are limitations of title, not of estate. He has nowhere said that all four ways of holding an estate are consistent with any kind of a title. e Co. Litt. 199. f Ibid. 200. 8 Previously spelt "enquiries." g Litt. 311. h Co. Litt. 197. *Cited, 49 Vt. 140; 54 Me. 90; 88 Pa. St. 146; 7 Marsh. J. J. 140. (39) Seised per my et per tout, by the half or moiety, and by all, page 182. This translation rests on the authority of Littleton and Lord Coke, but has been criticised by modern writers who no doubt are more familiar with the niceties of lawFrench than these authors or Blackstone. Mie or my unquestionably had both meanings, i. e., of a moiety, and of nothing. Littleton translated it better than Blackstone, per chescun parcel, which is not confined to the case of two tenants only, as "half" is. Whether Bracton was translating this maxim in the passage quoted by our author in note k is doubtful. At all events, he is speaking there (fol. 430 a) of co-heirs, not of joint tenants or tenants by entirety. (See note of Serjeant Manning to Murray v. Hall, 7 Com. B. 455; 2 Minor's Institutes, 404.) (40) Whether an inheritance or a common freehold only, page 183. It will be noticed that the peculiar incidents of joint tenancy must end with the last survivor of those first taking. Whether the inheritance be limited to his heirs or to those of all the joint tenants, they cannot well hold with all the requisite unities. Even if this may be considered theoretically possible under the rule of primogeniture, it would not be so by American law, dividing at each descent among all the heirs of the same degree. Practically the most careful limitation of the kind would be soon wrecked. This may not be true, however, of the kind of joint tenancy now most common in the United States, in many of them the only kind, where the joint tenants take the estate not "in their own right," but for a particular purpose, such as a railroad mortgage or other trust. Here the ordinary rules of descent are overridden by the power of the courts of equity to substitute new trustees, and there is no reason why such a joint interest might not be continued thus for generation after generation, with continual survivorship among the trustees in each. CHAPTER THE THIRTEENTH. OF THE TITLE TO THINGS REAL, IN GENERAL. The foregoing chapters having been principally employed 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 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. See note 41, page 321.] There are several stages or degrees requisite to form a complete title to lands and tenements. We will consider them in a progressive order. I. The lowest and most imperfect degree of title consists in the mere naked possession, or actual occupation of the estate; without any apparent right, or any shadow or pretence of right, to hold and continue such possession. This may happen, when one man invades the possession of another, and by force or surprize 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 [196] after the death of a particular tenant and before the entry of him in remainder or reversion, a stranger may contrive to get possession of the vacant land, and hold out a 1 Inst. 345. * Quoted, 53 Ala. 417; 34 Cal. 385; 94 Am. Dec. 737; 81 Va. 383, with parts of paragraphs ff. +- Quoted, 4 Ga. 604; 32 Cal. 194; 73 Ill. 458. ? Cited, 2 Conn. 11. |