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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.
(8) 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 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 Consequences of
and incidents of interest and possession, depend many other consequences to the union of 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
(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-tenantheir 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 perand 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 moiepro 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 husin the daughter. (Back v. Andrews, 2 band and wife, and to two other perVern. 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.
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 (o) (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 (). 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 pra1 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.
(u) 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. s. 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,