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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 survivor. 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 be mutual.

This right of survivorship is called by our antient authors (x) 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, 1. 4, tr. 3, c. 9, s. 3. Fleta, 1. 3, c. 4.

(7) See the last note. Our author, however, will instruct us, in a subsequent part of this volume, (ch. 25, p. 399), that," for the encouragement of husbandry and trade, it is held, that stock on a farm, though occupied jointly, and also a stock used in a joint

undertaking, by way of partnership in trade, shall always be considered as common, and not as joint property; and there shall be no survivorship therein. (See Jackson v. Jackson, 9 Ves. 596; and also post, note (13).

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. *3. We are, lastly, to inquire how an estate in joint-tenancy may be severed and destroyed. And this may be done by destroying any of its constituent unities. 1. That 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 scveral 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 (a) Co. Litt. 188. 193. (b) Litt. s. 290.

(y) Co. Litt. 190. Finch. L. 83. (z) 2 Lev. 12.

(8) Lord Coke (in 1 Instit. 181 b) says, there may be joint-tenancy without equal benefit of survivorship on both sides. As, "if a man letteth lands to A. and B. during the life of A., if B. dieth, A. shall have all by the sur

vivor, but if A. dieth, B. shall have no-
thing." And again (in 1 Instit. 193 a)
he puts, more doubtfully, another case,
in which the benefit of survivorship
would not be the same to both joint-


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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, either 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 invitus compellitur ad communionem. (Ff. 12. 6. 26. s. 4). And again; si non omnes qui rem communem habent, sed

(9) A party desirous of a partition has the law open to him; there is no original equity for it; but the equitable jurisdiction has obtained firm establishment, upon principles of convenience. (Calmady v. Calmady, 2 Ves. jun. 570. Mundy v. Mundy, 2 Ves. jun. 124).

The Courts of Chancery and of Exchequer issue commissions for making partition, not under the authority of any act of Parliament, but on account of the extreme difficulty attending the process at law; where the plaintiff must prove his title as he declares, and also the titles of the defendants. That is attended with so much embarrassment, that, by analogy to the jurisdiction of equity in cases of dower, a partition may be obtained upon bill. The plaintiff must, however, state upon the record his own title; and the titles of the defendants, as well as he is able: and the Court will aid this statement by directing an inquiry to ascertain who are, together with him, entitled to the whole subject of partition. (Agar v. Fairfax, 17 Ves. 553). It is evident that, where the interest is much divided, this is a much more convenient proceeding than the course pursued in a court of law. (Baring v. Nash, 1 Ves. & Bea. 555). And the jurisdiction is now so confirmed by

certi ex his, dividere desiderant; hoc judicium inter eos accipi potest. (Ff. 10. 3. 8).

usage, that a commission is considered due, in all cases where the writ would lie: (Turner v. Morgan, 8 Ves. 145. Manaton v. Squire, 2 Freem. 26): and not only so, but it has been declared there is no doubt equity may interfere, in cases where a writ of partition would not lie at common law. (Swan v. Swan, 8 Pr. 519). An additional reason, frequently, for proceeding by bill, rather than by writ, may be this:under a writ of partition, that specific relief alone can be had; but under a commission the account between the parties, with respect to the rents and profits of the estate, may be decreed at the same time. (Lorimer v. Lorimer, 5 Mad. 363). The proceeding by writ can be advisable only in cases where some of the parties having title are labouring under incapacities to do legal acts: for, partition in equity is completed by conveyances, to be executed by the parties; and the partition cannot be effectually had, if the parties be not competent to execute the conveyances: (Whaley v. Dawson, 2 Sch. & Lef. 372. Lord Brook v. Lord and Lady Hertford, 2 P. Wms. 518): for this reason, it is necessary to have the legal title before the Court; (Miller v. Warmington, 1 Jac. & Walk. 493); and, although an infant may be either

may be destroyed by destroying the unity of title. As if

plaintiff or defendant in a suit for partition, yet, in such a case, the conveyances of all parties must be respited till the infant comes of age. (Tuckfield v. Buller, 1 Dick. 243). But, the form of completing a partition at law is essentially different;-there it is effected by the judgment of the Court, and the delivering up possession in pursuance thereof; which concludes all the parties to the judgment. (Whaley v. Dawson, 2 Sch. & Lef. 372).

In the progress of a suit for partition, it is the practice of the Court of Exchequer, on the return of the certificate of the commissioners, to set the cause down for further directions, (Dean and Chapter of Hereford v. Hullett, 6 Pr. 332). In the case just cited, it was intimated to be the course of the Court of Chancery, to require an order nisi for the confirmation of the certificate to be moved for, before the cause was set down for further directions; in order that any party aggrieved might have an opportunity of taking exceptions. In point of fact, however, the practice of the Court of Chancery is not, as was assumed, to examine the correctness of the commissioners' return upon exceptions, but, on motion made, to suppress such return. (Jones v. Totty, 1 Sim. 136. Corbet v. Davenant, 2 Br. 252).

It has been said, obiter, that partition can only be decreed between jointtenants, tenants in common, or copartners; (Miller v. Warmington, 1 Jac. & Walk. 493; and see post, chap. 20, p. 323); but, under certain circumstances, the jurisdiction has, for a length of time, been exercised upon bills for dower: and the inconvenience of a

temporary partition will not sustain a demurrer to a bill brought by a plaintiff having a quantity of interest which would entitle him to the writ. (Baring v. Nash, 1 Ves. & Bea. 555). That the writ is demandable between tenants for life, or for years, appears expressly from the stat. 32 Hen. VIII. c. 32; and partition may be enforced by such parties, as between themselves, although the owner of the inheritance does not choose, and cannot, at the instance of the termors, be compelled, to join in the object of the suit. (Baring v. Nash, ubi supra). Upon similar principle, it is no objection to a partition, that parties may subsequently come in esse, who will be entitled to a share, in which event the whole process will have to be commenced over again. (Wills v. Slade, 6 Ves. 498). And difficulty, or inconvenience, or the minuteness of a party's interest, cannot in any case prevail as an objection to a commission for the purpose of making partition. (Parker v. Gerrard, Ambl. 236. Morgan, 8 Ves. 145, and 11 Ves. 157, n. Warner v. Baynes, Ambl. 589). A bill will lie for partition of tithes; (Baxter v. Knollys, 1 Ves. sen. 495); or of an advowson. (Matthews v. Bishop of Bath and Wells, 2 Dick. 652. Bodicoate v. Steers, 1 Dick. 69). And joint-tenants of an equity of redemption may have a partition, as between themselves, to which the mortgagee will not be a necessary party. (Swan v. Swan, 8 Price, 519).

Turner v.

A mere partition is no revocation of a previous devise by a tenant in common, because partition is an incident adherent to his estate, and the title remains the same. (Attorney

one joint-tenant alienes and conveys (10) his estate to a third person: here the joint-tenancy is severed, and turned into tenancy in common (d); for the grantee and the remaining joint-tenant hold by different titles, (one derived from the original, the other from the subsequent, grantor,) though, till partition made, the unity of possession continues. But [186] a devise of one's share by will is no severance of the jointure (11): for no testament takes effect till after the death of

(d) Litt. s. 292.

General v. Vigor, 8 Ves. 281). But, any qualified conveyance of the legal fee, or the slightest addition to the mere object of partition, would operate a revocation. (Brydges v. Duchess of Chandos, 2 Ves. jun. 429. Ward v. Moore, 4 Mad. 372. Knollys v. Alcock, 7 Ves. 564. Rawlins v. Burgess, 2 Ves. & Bea. 387. Maundrell v. Maundrell, 10 Ves. 249).

In the report of Ward v. Moore, (4 Mad. 372), it seems to be intimated, that a joint-tenant may devise his estate before partition, and that the partition will not revoke the devise. This, however, could hardly have been meant. In the case of Swift v. Roberts, (3 Burr. 1496, and Ambl. 618), it was held clear, that although subsequent events may affect the operation of a will, the party must have a devising power at the time of making the will, or it cannot be made valid by matter ex post facto. Now, a joint-tenant, whilst he continues such, clearly has not a devisable estate: and after partition he acquires a several estate, attended with different qualities, as to the actions and remedies which may be had by or against him in respect thereof, from those belonging to or affecting the estate in joint-tenancy. A republication of the will, indeed, after the partition, would

give it validity; for the will, in such case, will be considered as if originally made at the date of republication, when the devising power of the party could not be questioned.

The costs of issuing, executing, and confirming, a commission of partition, must be borne by the parties in proportion to the value of their respective interests; (Agar v. Fairfax, 17 Ves. 558); but no costs are given up to the hearing of the bill; (Baring v. Nash, 1 Ves. & Bea. 554); for there would be no equity in saddling one party with any portion of the charges in respect of previous collateral questions raised by the other. (Whaley v. Dawson, 2 Sch. & Lef. 371).

Great part of this note is extracted from 1 Hovenden's Supplem. to Ves. jun. 236.

(10) A covenant by a joint-tenant to sell, though it does not sever the joint-tenancy at law, will do so in equity; (Browne v. Raindle, 3 Ves. 257. Hinton v. Hinton, 2 Ves. sen. 639); provided the agreement for sale be one of which a specific performance could be enforced. (Partriche v. Powlett, 2 Atk. 54. Hinton v. Hinton, 2 Ves. sen. 634).

(11) See ante, note (9).

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