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OF ESTATES IN SEVERALTY, JOINT-TENANCY, &c.
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.
(a) Litt. s. 277.
(b) See pag. 137.
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,
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.
(g) Co. Litt. 188.
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
moiety (j). And therefore, if an estate in fee be given to a
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
(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