OF ESTATES IN SEVERALTY, JOINT-TENANCY, &c.

180

II. An estate in joint-tenancy is where lands or tene- 11. 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 (6).

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. 1. The creation of an estate in joint-tenancy, depends on 1. The creation

of this estate dethe wording of the deed or devise, by which the tenants

pends on the claim title: for this estate can only arise by purchase or wording of the

instrument ungrant, that is, by the act of the parties, and never by the der which the mere act of law. Now, if an estate be given to a plurality tenant claims. 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 interest;

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.

(d) Litt. s. 277.

(1) But, two persons may have an that though for some purposes the esestate in joint-tenancy for their lives, tate for life of the joint-tenant having and yet have several inheritances. (Litt. the fee, is distinct from, and unmerged sect. 283, 284. 1 Inst. 184 a.

Cook v. in, his greater estate; yet, for granting, Cook, 2 Vern. 545. Cray v. Willis, 2 it is not so, but both estates are in that P. Wms. 530). This is the case, where respect consolidated, notwithstanding an estate is granted in joint-tenancy to the estate of the other joint-tenant: and persons and the heirs of their bodies, therefore, that the fee cannot, in strictwhich persons cannot intermarry. (Seeness of law, be granted as a remainder, post, p. 192). But, in this case, there eo nomine, and as an interest distinct is no division between the estate for from the estate for life. (See the last lives and the several inheritances, and note). But, Lord Coke never meant the joint-tenants cannot convey away that the joint-tenant, having the fee, their inheritances after their decease; could not in any form pass away the (see the next note); the estate for lives fee, subject to the estate of the other and the inheritance are divided only joint-tenant: that would be a doctrine in supposition and consideration of law, not only contrary to the power of alieand to some purposes the inheritance is nation, necessarily incident to a feeexecuted. (1 Inst. 182 b).

simple, but would be inconsistent with (2) Lord Coke observes, “when land Lord Coke's own statement in another is given to two, and to the heirs of one part of his commentary. (See Co. Litt. of them, he in the remainder cannot 367 b). The true signification of the grant away his fee-simple, as hath passage cited at the commencement of been said." (1 Inst. 184 b. and see the this note, may be illustrated by what last note). Mr. Hargrave, in his note the same great lawyer lays down in upon this passage, remarks, that there Wiscot's case, (2 Rep. 61 a), namely, is a seeming difficulty in it; but he that when an estate is made to several conceives Lord Coke's meaning to be, persons, and the heirs of one of them,

and

heirs of the body of A.; here both have a joint estate for life, and A. hath a several remainder in tail(e). Secondly, unity of title ; 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 same disseisin (f). 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, unity of time; 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 jointtenants of this remainder, but tenants in common; for one moiety vested at one time, and the other moiety vested at another (g). *Yet where a feoffment was made to the use of [ *182 ] a man, and such wife as he should afterwards 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 (h) (3):

*

(e) Litt. s. 285.
(f) Ibid. s. 278.

(g) Co. Litt. 188.
(1) Dyer, 340. 1 Rep. 101.

he who hath the fee cannot grant over the original work, or p. 134 of Mr. his remainder, and continue in himself Sugden's greatly improved edition), is an estate for life.

as follows: “here the husband has no (3) The reason assigned in Gilbert's property in the land, neither jus in re, Treat. on Uses and Trusts, (p. 71 of nor ad rem, but the feoffee has the

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 unity of posses- creation. Lastly, in joint-tenancy there must be an unity of sion.

possession. Joint-tenants are said to be seised per my et per tout, by the half or moiety, and by all: that is, they each of them have the entire possession, 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

(i) Litt. s. 288. 5 Rep. 10.

whole property, at first to the use of another, that child takes jointly with
the husband only, and upon the con- the former; and so on if there are twen-
tingency of marriage to the use of them ty children. (Stratton v. Best, 2 Br.
both entirely. And this is the only 240).
rule of equity to support the trust in And that it is a joint claim by the
the same manner the parties have limit. same conveyance which makes joint-
ed it, and now it is executed by the tenants, not the time of vesting, has
statute in the same form as it was go- been held in various other cases. See
vered in equity." Mr. Sugden, in Blamforde v. Blamforde, 3 Bulstr. 101.
his note upon this passage, observes, Earl of Susser v. T'emple, 1 Lord Raym.
that the point so laid down was not es- 312. Aylor v. Chep, Cro. Jac. 259.
tablished without difficulty, and that it S. C. Yelv, 183. Oates v. Jackson, 2
seems questionable, whether the ground Str. 1172. Hales v. Risley, Pollexf.
of decision was not that the use result. 373).
ed to the feoffor till the marriage, and So, although some of the persons to
that upon the marriage the use declar- whom an estate is limited, are in by
ed arose, in which case the husband the common law, and others by the
and wife took the use limited to them statute of uses, yet they will take in
at the same time, and not at different joint-tenancy: (Watts v. Lee, Noy, 124.
periods. (Mutton's case, 2 Leon. 223). Sammes' case, 13 Rep. 54): and Lord
Mr. Sugden adds, it is clear, at this day, Thurlow held, that whether a settlement
that persons may take as joint-tenants, was to be considered as a conveyance
by way of use, although at different of a legal estate, or a deed to uses,
times. Thus, suppose in a marriage would make no difference, and that in
settlement an estate to be limited to the either case, the vesting at different times
children of the marriage, as joint-ten- would not necessarily prevent the set-
ants in fee; on the birth of one child tled estate from being taken in joint-
the whole vests in him; on the birth of tenancy. (Stratton v. Best, 2 Br. 240).

moiety (j). 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 con-
sidered 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 hus-
band nor the wife can dispose of any part without the as-
sent of the other, but the whole must remain to the sur-
vivor (k) (4)

Upon these principles, of a thorough and intimate union Consequences of of interest and possession, depend many other consequences to the union of

and incidents and incidents to the joint-tenant's estate. If two joint- interest and pos

session.
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

a

(j) Quilibet totum tenet et nihil tenet; scilicet, totum in communi, et nihil separatim per se. Bract. I. 5, tr. 5, c. 26.

(k) Litt. s. 665. Co. Litt. 187. Bro, Abr. t. Cui in vita, 8. 2 Vern. 120. 2 Lev. 39.

(4) A man purchased a copyhold wards intermarry, they will still remain
estate, and took a surrender of it to seised of their respective moieties, and
himself, his wife, and his daughter, and the husband may sever the joint-tenan-
their heirs. He afterwards, being vi- cy and alien his moiety. (Green v. King,
sible owner of the estate, mortgaged it, ubi supra. 1 Inst. 187 b. Moody v.
and then died. The mortgagor brought Moody, Ambl. 650).
his bill in equity against the mother " If a joint-estate be made of land to
and daughter, to discover their title, husband and wife, and to a third per-
and to set aside their estates, as fraudu. son, in this case the husband and wife
lent against the mortgagor, who was have in law, in their right, but the moie-
pro tanto a purchaser. The bill was ty; and the third person shall have as.
dismissed, on the ground that the hus- much as the husband and wife, viz. the
band and wife took one moiety by en- other moiety. And the cause is, for
tireties, so that the husband could not that the husband and wife are but one
alien or dispose of it, to bind the wife, person in law. In the same manner
and the other moiety was well vested it is where an estate is made to the hus.
in the daughter. (Back v. Andrews, 2 band and wife, and to two other per-
Vern. 120; S. C. Prec. in Cha. 1. Green sons: in this case the husband and
v. King, 2 W. Bla. 1214. Doe v. Pur- wife have but the third part, and the
ratt, 5 T. R. 654). But, when a man other two persons the other two parts."
and a woman, before their marriage, (Litt. sect. 291).
are joint-tenants, should they after-