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 (ƒ). 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;

and

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.

(h) Dyer, 340. 1 Rep. 101.

he who hath the fee cannot grant over his remainder, and continue in himself an estate for life.

(3) The reason assigned in Gilbert's Treat. on Uses and Trusts, (p. 71 of

the original work, or p. 134 of Mr.
Sugden's greatly improved edition), is
as follows: "here the husband has no
property in the land, neither jus in re,
nor ad rem, but the feoffee has the

sion.

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 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
the husband only, and upon the con-
tingency of marriage to the use of them
both entirely. And this is the only

rule of equity to support the trust in
the same manner the parties have limit.
ed it, and now it is executed by the
statute in the same form as it was go-
verned in equity." Mr. Sugden, in
his note upon this passage, observes,
that the point so laid down was not es-
tablished without difficulty, and that it
seems questionable, whether the ground
of decision was not that the use result.
ed to the feoffor till the marriage, and
that upon the marriage the use declar-
ed arose, in which case the husband
and wife took the use limited to them
at the same time, and not at different
periods. (Mutton's case, 2 Leon. 223).
Mr. Sugden adds, it is clear, at this day,
that persons may take as joint-tenants,
by way of use, although at different
times. Thus, suppose in a marriage
settlement an estate to be limited to the
children of the marriage, as joint-ten-
ants in fee; on the birth of one child
the whole vests in him; on the birth of

another, that child takes jointly with the former; and so on if there are twenty children. (Stratton v. Best, 2 Br. 240).

And that it is a joint claim by the same conveyance which makes jointtenants, not the time of vesting, has been held in various other cases. (See Blamforde v. Blamforde, 3 Bulstr. 101. Earl of Sussex v. Temple, 1 Lord Raym. 312. Aylor v. Chep, Cro. Jac. 259. S. C. Yelv. 183. Oates v. Jackson, 2 Str. 1172. Hales v. Risley, Pollexf. 373).

So, although some of the persons to whom an estate is limited, are in by the common law, and others by the statute of uses, yet they will take in joint-tenancy: (Watts v. Lee, Noy, 124. Sammes' case, 13 Rep. 54): and Lord Thurlow held, that whether a settlement was to be considered as a conveyance of a legal estate, or a deed to uses, would make no difference, and that in either case, the vesting at different times would not necessarily prevent the settled estate from being taken in jointtenancy. (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 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 (k) (4).

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 jointtenants 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

(j) Quilibet totum tenet et nihil tenet; scilicet, totum in communi, et nihil separatim per se. Bract. l. 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 estate, and took a surrender of it to himself, his wife, and his daughter, and their heirs. He afterwards, being visible owner of the estate, mortgaged it, and then died. The mortgagor brought his bill in equity against the mother and daughter, to discover their title, and to set aside their estates, as fraudulent against the mortgagor, who was pro tanto a purchaser. The bill was dismissed, on the ground that the husband and wife took one moiety by entireties, so that the husband could not alien or dispose of it, to bind the wife, and the other moiety was well vested in the daughter. (Back v. Andrews, 2 Vern. 120; S. C. Prec. in Cha. 1. Green v. King, 2 W. Bla. 1214. Doe v. Parratt, 5 T. R. 654). But, when a man and a woman, before their marriage, are joint-tenants, should they after

VOL. II.

wards intermarry, they will still remain
seised of their respective moieties, and
the husband may sever the joint-tenan-
cy and alien his moiety. (Green v. King,
ubi supra. 1 Inst. 187 b. Moody v.
Moody, Ambl. 650).

"If a joint-estate be made of land to
husband and wife, and to a third per-
son,
in this case the husband and wife
have in law, in their right, but the moie-
ty; and the third person shall have as
much as the husband and wife, viz. the
other moiety. And the cause is, for
that the husband and wife are but one
person in law. In the same manner
it is where an estate is made to the hus-
band and wife, and to two other per-
sons: in this case the husband and
wife have but the third part, and the
other two persons the other two parts,"
(Litt. sect. 291).

joint-reversion (1). If their lessee surrenders his lease to one of them, it shall also enure to both, because of the privity, or relation of their estate (m). On the same reason, livery of seisin, made to one joint-tenant, shall enure to both of them (n): and the entry, or re-entry, of one joint-tenant is as effectual in law as if it were the act of both (0) (5). In all actions also relating to their joint estate, one joint-tenant cannot sue or be sued without joining the other (p). 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 [183] patronage, but each is seised of 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 (q). Upon the same ground it is held, that one joint-tenant cannot have an action against another for trespass, in respect of his land (r); for each has an equal right to enter on any part of it. But one jointtenant is not capable by himself to do any act, which may tend to defeat or injure the estate of the other (6); as to let

(5) In ejectment, the possession of survivorship among joint-tenants, all one joint-tenant is the possession of the charges made by a joint-tenant on the other, so as to prevent the statute of estate determine by his death, and do limitations from running against him. not affect the survivor. For, it is a (Ford v. Lord Grey, Mod. 44. S. C. maxim of law, that jus accrescendi præ1 Salk. 285). fertur oneribus. (1 Inst. 185 a. Litt. (6) In consequence of the right of sect. 286). But, if the grantor of the

leases, or to grant copyholds (s): and if any waste be done, which tends to the destruction of the inheritance, one jointtenant may have an action of waste against the other, by construction of the statute Westm. 2, c. 22 (t). 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 (u), 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 jointestate, 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

(s) 1 Leon. 234.

(t) 2 Inst. 403.

(u) Co. Litt. 200.

charge survives, of course, it is good. (Co. Litt. 184 b). So, if one jointtenant suffers a judgment in an action of debt to be entered up against him, and dies before execution had, it will not be executed afterwards; but if execution be sued in the life of the cognizor, it will bind the survivor. (Lord Abergavenny's case, 6 Rep. 79. 1 Inst. 184 a).

There is, however, one exception to the rule, that joint-tenants cannot charge the estate in any way, so as to affect the interests of the survivors: for

instance, if there are two joint-tenants
in fee, and one of them makes a lease
for years to a stranger, it will be good
against the survivor, even though such
lease is not made to commence till after
the death of the joint tenant who exe-
cuted it; because, the grant of a lease
is a disposition of the land, made at
the time of such grant, though posses-
sion is not then given. (Co. Litt. 185 a.
Litt. s. 289. Whittock v Horton, Cro.
Jac. 91. Clerk v. Turner, 2 Vern.
323).

+Mr. Christian observes, "this action is now perhaps never brought; but the practice is to apply to a court of equity to compel an account; which is also the jurisdiction generally resorted to,

in order to obtain a partition between
joint-tenants, parcenors, and tenants in
common. (Com. Dig. Chanc, 3 V. 6.
& 4 E. Mitf. 109)."