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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 (9). 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, 6 Mod. 44. S. C. maxim of law, that jus accrescendi pre1 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 t.
From the same principle also arises the remaining grand of the jus acincident of joint-estates; viz. the doctrine of survivorship: right of surviby which, when two or more persons are seised of a joint- vorship. estate, 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.
(4) Co. Litt. 200.
charge survives, of course, it is good. instance, if there are two joint-tenants (Co. Litt. 184 b). So, if one joint- in fee, and one of them makes a lease tenant suffers a judgment in an action for years to a stranger, it will be good of debt to be entered up against him, against the survivor, even though such and dies before execution had, it will lease is not made to commence till after not be executed afterwards; but if ex- the death of the joint tenant who exe. ecution be sued in the life of the cog- cuted it; because, the grant of a lease nizor, it will bind the survivor. (Lord is a disposition of the land, made at Abergavenny's case, 6 Rep. 79. 1 Inst. the time of such grant, though posses184 a).
sion is not then given. (Co. Litt. 185 a. There is, however, one exception to Litt. 8. 289. Whittock v Horton, Cro. the rule, that joint-tenants cannot Jac. 91. Clerk v. Turner, 2 Vern. charge the estate in any way, so as to 323). affect the interests of the survivors: for
Mr. Christian observes, “ this action in order to obtain a partition between is now perhaps never brought; but the joint-tenants, parcenors, and tenants in practice is to apply to a court of equity common. (Com. Dig. Chanc, 3 V. 6. to compel an account; which is also & 4 E. Mitf. 109).” the jurisdiction generally resorted to,
entitled to the whole estate, whatever it be, whether an inheritance, or a common freehold only, or even a less estate (w) (7). This is the natural and regular consequence
of the union and entirety of their interest. The interest of [ *184 ) two joint-tenants *is not only equal or similar, but also is
one and the same. One has not originally a distinct moiety from the other; but, if by any subsequent act (as by alienation or forfeiture of either) the interest becomes separate and distinct, the joint-tenancy instantly ceases. But, while it continues, each of two joint-tenants has a concurrent interest in the whole; and therefore, on the death of his companion, the sole interest in the whole remains to the survi. vor. For the interest which the survivor originally had is clearly not divested by the death of his companion; and no other person can now claim to have a joint estate with him, for no one can now have an interest in the whole, accruing by the same title, and taking effect at the same time with his own; neither can any one claim a separate interest in any part of the tenements; for that would be to deprive the survivor of the right which he has in all, and every part. As therefore the survivor's original interest in the whole still remains; and as no one can now be admitted, either jointly or severally, to any share with him therein; it follows, that his own interest must now be entire and several, and that he shall alone be entitled to the whole estate
(whatever it be) that was created by the original grant. This right must This right of survivorship is called by our antient au
thors (2) the jus accrescendi, because the right upon the death of one joint-tenant accumulates and increases to the
(w) Litt. s. 280, 281. (x) Bracton, l. 4, tr. 3, c. 9, s. 3. Fleta, l. 3, c. 4.
(7) See the last note. Our author, undertaking, by way of partnership in however, will instruct us, in a subse- trade, shall always be considered as quent part of this volume, (ch. 25, p. common, and not as joint property; 399), that, “ for the encouragement of and there shall be no survivorship husbandry and trade, it is held, that therein. (See Jackson v. Jackson, 9 stock on a farm, though occupied Ves. 596; and also post, note (13). jointly, and also a stock used in a joint
survivors: or, as they themselves express it, “pars illa “ communis accrescit superstitibus, de persona in perso“ nam, usque ad ultimam superstitem.” And this jus accrescendi ought to be mutual; which I apprehend to be one reason why neither the king (y), nor any corporation (2), can be a joint-tenant with a private person. For here is no mutuality (8): the private person has not even the remotest chance of being seised of the entirety, by benefit of survivorship; for the king and the corporation can never die. [ *185 ) *3. We are, lastly, to inquire how an estate in joint-te- 3. "The modes
by which a nancy may be severed and destroyed. And this may be
joint tenancy done by destroying any of its constituent unities. ]. That may be severed
or destroyed. of time, which respects only the original commencement of the joint-estate, cannot indeed (being now past) be affected by any subsequent transactions. But, 2. The joint-tenants' estate may be destroyed, without any alienation, by merely disuniting their possession. For joint-tenants being seised per my et per tout, every thing that tends to narrow that interest, so that they shall not be seised throughout the whole and throughout every part, is a severance or destruction of the jointure. And therefore, if two joint-tenants agree to part their lands, and hold them in severalty, they are no longer joint-tenants: for they have now no joint-interest in the whole, but only a several interest respectively in the several parts. And for that reason also, the right of survivorship is by such separation destroyed (a). By common law all the joint-tenants might agree to make partition of the lands, but one of them could not compel the other so to do (b): for this being an estate originally created by the act
(y) Co. Litt. 190. Finch. L. 83. (a) Co. Litt. 188. 193. (z) 2 Lev. 12.
(6) Litt. s. 290.
(8) Lord Coke (in 1 Instit. 181 b) vivor, but if A. dieth, B. shall have nosays, there may be joint-tenancy with- thing.” And again (in 1 Instit. 193 a) out equal benefit of survivorship on he puts, more doubtfully, another case, both sides. As, “if a man letteth lands in which the benefit of survivorship to A. and B. during the life of A., if would not be the same to both jointB. dicth, A. shall have all by the sur
and agreement of the parties, the law would not permit any one or more of them to destroy the united possession without a similar universal consent. But now, by the statutes 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. 32, joint-tenants, ei
c ther of inheritances or other less estates, are compellable by writ of partition to divide their lands (c) (9). 3. The jointure
(c) Thus by the civil law, nemo invi- certi ex his, dividere desiderant ; hoc tus compellitur ad communionem. (Ff. judicium inter eos accipi potest. (Ff. 10. 12. 6. 26. s. 4). And again ; si non
3. 8). omnes qui rem communem habent, sed
(9) A party desirous of a partition usage, that a commission is considered has the law open to him; there is no due, in all cases where the writ would original equity for it; but the equitable lie: (Turner v. Morgan, 8 Ves. 145. jurisdiction has obtained firm establish- Manaton v. Squire, 2 Freem. 26): and ment, upon principles of convenience.
not only so, but it has been declared (Calmady v. Calmady, 2 Ves. jun. 570. there is no doubt equity may interfere, Mundy v. Mundy, 2 Ves. jun. 124). in cases where a writ of partition would
The Courts of Chancery and of Ex- not lie at common law. (Swan v. chequer issue commissions for making Swan, 8 Pr. 519). An additional reapartition, not under the authority of son, frequently, for proceeding by bill, any act of Parliament, but on account rather than by writ, may be this: of the extreme difficulty attending the under a writ of partition, that specific process at law; where the plaintiff relief alone can be had; but under a must prove his title as he declares, and commission the account between the also the titles of the defendants. That parties, with respect to the rents and is attended with so much embarrass- profits of the estate, may be decreed at ment, that, by analogy to the jurisdic- the same time. (Lorimer v. Lorimer, tion of equity in cases of dower, a par- 5 Mad. 363). The proceeding by tition may be obtained upon bill. The writ can be advisable only in cases plaintiff must, however, state upon the where some of the parties having title record his own title; and the titles of are labouring under incapacities to do the defendants, as well as he is able: legal acts: for, partition in equity is and the Court will aid this statement completed by conveyances, to be exeby directing an inquiry to ascertain cuted by the parties; and the partition who are, together with him, entitled to cannot be effectually had, if the parties the whole subject of partition. (Agar be not competent to execute the conv. Fairfax, 17 Ves. 553). It is evi- veyances: (Whaley v. Dawson, 2 Sch. dent that, where the interest is much & Lef. 372. Lord Brook v. Lord and divided, this is a much more conve- Lady Hertford, 2 P. Wms. 518): for nient proceeding than the course pur- this reason, it is necessary to have the sued in a court of law. (Baring v. legal title before the Court; (Miller v. Nash, 1 Ves. & Bea, 555). And the Warmington, 1 Jac. & Walk. 493); jurisdiction is now so confirmed by and, although an infant may be either