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if there be tenant for years, and the reversion in fee-simple descends to or is purchased by him, the term of years is merged in the inheritance, and shall never exist any more. But they must come to one and the same person in one and the same right; else, if the freehold be in his own right, and he has a term in right of another (en auter droit) there is no merger. Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge; for he hath the fee in his own right, and the term of years in the right of the testator, and subject to his debts and legacies. So, also, if he who hath the reversion in fee marries the tenant for years, there is no merger; for he hath the inheritance in his own right, the lease in the right of his wife (z). An estate-tail is an exception to this rule: for a man may have in his own right both an estate-tail and a reversion in fee; and the estate-tail, though a less estate, shall not merge in the fee (a). For estates-tail are protected and * 178] preserved from merger by the operation and construction, though not by the express words, of the statute de donis: which operation and construction have probably arisen upon
(2) Plow. 418. Cro. Jac. 275. Co. Litt. 338.
(a) 2 Rep. 61. 8 Rep. 74.
otherwise. For, where by the same
A court of equity will in some cases
relieve against the merger of a term, and make it answer the purposes for which it was created. Thus, in Powell v. Morgan, (2 Vern. 90), a portion was directed to be raised out of a term for years, for the testator's daughter. The fee afterwards descended on her, and she, being under age, devised the portion. The Court of Chancery relieved against the merger of the term; and decreed the portion to go according to the will of the daughter. (See also, Thomas v. Kemish, 2 Freem. 208, S. C. 2 Vern. 352. Saunders v. Bournford, Finch, 424).
this consideration; that, in the common cases of merger of estates for life or years by uniting with the inheritance, the particular tenant hath the sole interest in them, and hath full power at any time to defeat, destroy, or surrender them to him that hath the reversion; therefore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate (b). But, in an estate-tail, the case is otherwise: the tenant for a long time had no power at all over it, so as to bar or to destroy it, and now can only do it by certain special modes, by a fine, a recovery, and the like (c): it would therefore have been strangely improvident to have permitted the tenant in tail, by purchasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue; and hence it has become a maxim, that a tenancy in tail, which cannot be surrendered, cannot also be merged in the fee.
OF ESTATES IN SEVERALTY, JOINT-TENANCY,
Of the nature and properties of estates, with regard to the number and connexions of the tenants.
I. Of estates in severalty.
WE come now to treat of estates, with respect to the number and connexions of their owners, the tenants who occupy and hold them. And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or expectancy, may be held in four different ways: in severalty, in joint-tenancy, in coparcenary, and
I. He that holds lands or tenements in severalty, or is sole tenant thereof, is he that holds them in his own right. only, without any other person being joined or connected with him in point of interest, during his estate therein. This is the most common and usual way of holding an estate; and therefore we may make the same observations here, that we did upon estates in possession, as contradistinguished from those in expectancy, in the preceding chapter: that there is little or nothing peculiar to be remarked concerning it, since all estates are supposed to be of this sort, unless where they are expressly declared to be otherwise; and that in laying down general rules and doctrines, we usually apply them to such estates as are held in severalty. I shall therefore proceed to consider the other three species of estates, in which there are always a plurality of
OF ESTATES IN SEVERALTY, JOINT-TENANCY, &c.
II. An estate in joint-tenancy is where lands or tene- II. Of estates in ments are granted to two or more persons, to hold in fee- joint-tenancy. simple, fee-tail, for life, for years, or at will. In conse. quence of such grants an estate is called an estate in jointtenancy (a), and sometimes an estate in jointure, which word, as well as the other, signifies an union or conjunction of interest; though in common speech the 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.
of this estate depends on the wording of the
der which the tenant claims.
1. The creation of an estate in joint-tenancy, depends on 1. The creation the wording of the deed or devise, by which the 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 an 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 its 2. Its properties unity, which is fourfold; the unity of interest, the unity of are derived 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.
Unity of inter
First, they must have one and the same interest (1). One joint-tenant cannot be entitled to one period of duration or quantity of interest in lands, and the other 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 (c). 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 (d). 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 (2): or if land be given to A. and B., and the (c) Co. Litt. 188.
(1) But, two persons may have an estate in joint-tenancy for their lives, and yet have several inheritances. (Litt. sect. 283, 284. 1 Inst. 184 a. Cook v. Cook, 2 Vern. 545. Cray v. Willis, 2 P. Wms. 530). This is the case, where an estate is granted in joint-tenancy to persons and the heirs of their bodies, which persons cannot intermarry. (See post, p. 192). But, in this case, there is no division between the estate for lives and the several inheritances, and the joint-tenants cannot convey away their inheritances after their decease; (see the next note); the estate for lives and the inheritance are divided only in supposition and consideration of law, and to some purposes the inheritance is executed. (1 Inst. 182 b).
(2) Lord Coke observes, "when land is given to two, and to the heirs of one of them, he in the remainder cannot grant away his fee-simple, as hath been said." (1 Inst. 184 b. and see the last note). Mr. Hargrave, in his note upon this passage, remarks, that there is a seeming difficulty in it; but he conceives Lord Coke's meaning to be,
(d) Litt. s. 277.
that though for some purposes the estate for life of the joint-tenant having the fee, is distinct from, and unmerged in, his greater estate; yet, for granting, it is not so, but both estates are in that respect consolidated, notwithstanding the estate of the other joint-tenant: and therefore, that the fee cannot, in strictness of law, be granted as a remainder, eo nomine, and as an interest distinct from the estate for life. (See the last note). But, Lord Coke never meant that the joint-tenant, having the fee, could not in any form pass away the fee, subject to the estate of the other joint-tenant: that would be a doctrine not only contrary to the power of alienation, necessarily incident to a feesimple, but would be inconsistent with Lord Coke's own statement in another part of his commentary. (See Co. Litt. 367 b). The true signification of the passage cited at the commencement of this note, may be illustrated by what the same great lawyer lays down in Wiscot's case, (2 Rep. 61 a), namely, that when an estate is made to several persons, and to the heirs of one of them,