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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 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 aube mutual. thors (c) the jus accrescendi, because the right upon the
death of one joint-tenant accumulates and increases to the
(w) Litt. s. 280, 281. (4) Bracton, 1. 4, tr. 3, c. 9, S. 3. Fleta, 1, 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 nancy may be severed and destroyed. And this may be porn hecha a 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 (6): for this being an estate originally created by the act
(y) Co. Litt. 190. Finch. L. 83. (2) 2 Lev. 12.
(a) Co. Litt. 188. 193.
(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. dieth, 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, 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 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
may be destroyed by destroying the unity of title. As if
plaintiff or defendant in a suit for par- temporary partition will not sustain a tition, yet, in such a case, the convey- demurrer to a bill brought by a plainances of all parties must be respited tiff having a quantity of interest which till the infant comes of age. (Tuckfield would entitle him to the writ. (Baring v. Buller, 1 Dick. 243). But, the form v. Nash, 1 Ves. & Bea. 555). That of completing a partition at law is es. the writ is demandable between tenants sentially different;—there it is effected for life, or for years, appears expressly by the judgment of the Court, and the from the stat. 32 Hen. VIII. c. 32; and delivering up possession in pursuance partition may be enforced by such parthereof; which concludes all the par- ties, as between themselves, although ties to the judgment. (Whaley v. the owner of the inheritance does not Dawson, 2 Sch. & Lef. 372).
choose, and cannot, at the instance of In the progress of a suit for parti- the termors, be compelled, to join in the tion, it is the practice of the Court of object of the suit. (Baring v. Nash, Exchequer, on the return of the certi- ubi supra). Upon similar principle, it ficate of the commissioners, to set the is no objection to a partition, that parcause down for further directions, ties may subsequently come in esse, who (Dean and Chapter of Hereford v. will be entitled to a share, in which Hullett, 6 Pr. 332). In the case just event the whole process will have to be cited, it was intimated to be the course commenced over again. (Wills v. Slade, of the Court of Chancery, to require an 6 Ves. 498). And difficulty, or inorder nisi for the confirmation of the convenience, or the minuteness of a certificate to be moved for, before the party's interest, cannot in any case precause was set down for further direc- vail as an objection to a commission for tions; in order that any party aggrieved the purpose of making partition. (Parmight have an opportunity of taking ker v. Gerrard, Ambl. 236. Turner v. exceptions. In point of fact, however, Morgan, 8 Ves. 145, and 11 Ves. 157, n. the practice of the Court of Chancery Warner v. Baynes, Ambl. 589). A is not, as was assumed, to examine the bill will lie for partition of tithes; (Bax correctness of the commissioners' return ter v. Knollys, 1 Ves. sen. 495); or of upon exceptions, but, on motion made, an advowson. (Matthews v. Bishop of to suppress such return. (Jones va Bath and Wells, 2 Dick. 652. BodiTotty, 1 Sim. 136. Corbet v. Davenant, coate v. Steers, 1 Dick. 69). And 2 Br. 252).
joint-tenants of an equity of redempIt has been said, obiter, that partition tion may have a partition, as between can only be decreed between joint- themselves, to which the mortgagee tenants, tenants in common, or co- will not be a necessary party. (Swan partners; (Miller v. Warmington, 1 Jac. v. Swan, 8 Price, 519). & Walk. 493; and see post, chap. 20, A mere partition is no revocation of p. 323); but, under certain circum- a previous devise by a tenant in comstances, the jurisdiction has, for a length mon, because partition is an inciof time, been exercised upon bills for dent adherent to his estate, and the dower: and the inconvenience of a 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 join
ture (11): for no testament takes effect till after the death of
(d) Litt. s. 292.
General v. Vigor, 8 Ves. 281). But, give it validity; for the will, in such
interests; (Agar v. Fairfax, 17 Ves.