Sivut kuvina

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 plain. ances 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 cannol, 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 para cause 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 v. 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,

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

or CO

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
any qualified conveyance of the legal case, will be considered as if originally
fee, or the slightest addition to the made at the date of republication,
mere object of partition, would operate when the devising power of the party
a revocation. (Brydges v. Duchess of could not be questioned.
Chandos, 2 Ves. jun. 429. Ward v. The costs of issuing, executing, and
Moore, 4 Mad. 372. Knollys v. Alcock, confirming, a commission of partition,
7 Ves. 564. Rawlins v. Burgess, 2 must be borne by the parties in pro-
Ves. & Bea. 387. Maundrell v. Maun- portion to the value of their respective
drell, 10 Ves. 249).

interests; (Agar v. Fairfax, 17 Ves.
In the report of Ward v. Moore, (4 558); but no costs are given up to
Mad. 372), it seems to be intimated, the hearing of the bill; (Baring v.
that a joint-tenant may devise his es- Nash, 1 Ves. & Bea. 554); for there
tate before partition, and that the par- would be no equity in saddling one
tition will not revoke the devise. This party with any portion of the charges
however, could hardly have been meant. in respect of previous collateral ques-
In the case of Swift v. Roberts, (3 Burr. tions raised by the other. (Whaley v.
1496, and Ambl. 618), it was held Dawson, 2 Sch. & Lef. 371).
clear, that although subsequent events Great part of this note is extracted
may affect the operation of a will, the from 1 Hovenden's Supplem. to Ves.
party must have a devising power at the jun. 236.
time of making the will, or it cannot be (10) A covenant by a joint-tenant
made valid by matter ex post facto. to sell, though it does not sever the
Now, a joint-tenant, whilst he con- joint-tenancy at law, will do so in
tinues such, clearly has not a devisable equity; (Browne v. Raindle, 3 Ves.
estate: and after partition he acquires 257. Hinton v. Hinton, 2 Ves. sen.
a several estate, attended with different 639); provided the agreement for sale
qualities, as to the actions and reme- be one of which a specific performance
dies which may be had by or against could be enforced. (Partriche v. Pow-
him in respect thereof, from those be- lett, 2 Atk. 54. Hinton v. Hinton, 2
longing to or affecting the estate in Ves. sen. 634).
joint-tenancy. A republication of the (11) See ante, note (9).
will, indeed, after the partition, would

the testator, and by such death the right of the survivor (which accrued at the original creation of the estate, and has therefore a priority to the other (e)) is already vested (f). 4. It may also be destroyed by destroying the unity of interest. And therefore, if there be two joint-tenants for life, and the inheritance is purchased by or descends upon either, it is a severance of the jointure (g); though, if an estate is originally limited to two for life, and after to the heirs of one of them, the freehold shall remain in jointure, without merging in the inheritance; because, being created by one and the same conveyance, they are not separate estates (which is requisite in order to a merger), but branches of one entire estate (h). In like manner, if a joint-tenant in fee makes a lease for life of his share, this defeats the jointure (°) (12): for it destroys the unity both of title and of interest. And whenever or by whatever means the jointure ceases or is severed, the right of survivorship or jus accrescendi the same instant ceases with it (k). Yet, if one of three joint-tenants alienes his share, the two remaining tenants still hold their parts by joint-tenancy and survivorship (1): and, if one of three joint-tenants releases his share to one of his companions, though the joint-tenancy is destroyed with regard to that part, yet the two remaining

(e) Jus accrescendi prafertur ultimæ voluntati. Co. Litt. 185.

(5) Litt. s. 287.
(8) Cro. Eliz. 470.
(h) 2 Rep. 60. Co. Litt. 182.

(i) Litt. s. 302, 303.

(k) Nihil de re accrescit ei, qui nihil in re quando jus accresceret habet. Co. Litt. 188.

(1) Litt. s. 294.

(12) In the case of Gale v. Gale, (2 joint-tenants. Here certainly is a seCox, 155), Chief Baron Macdonald verance by the lease; but if the lessee said, “there are instances to be found, dies in the life-time of both the jointwhere an estate that has been severed tenants, the estate re-unites.” And in may be reunited; as in the case put in Mr. Preston's edition of Watkin's Co. Litt. (193 a), of there being two Princip. of Convey. (p. 84), it is said, joint-tenants in fee, and one leasing for that a grant for life, or in tail, by a the term of the lessee's life, which joint-tenant in fee, only suspends the lessee dies in the life-time of both the joint-tenancy,

parts are still held in jointure (m); for they still preserve their original constituent unities. But when, by any act or event, different interests are created in the several parts of the estate, or they are held by different titles, or if merely the possession is separated; so that the tenants have no longer these four indispensable properties, a sameness of interest, and undivided possession, a title vesting at one and the same time, and by one and the same act or grant; the

jointure is instantly dissolved. [ *187 ] The conse

*In general, it is advantageous for the joint-tenants to disquences of dis- solve the jointure (13); since thereby the right of survivorsolving the joint estate.

(m) Litt. s. 304.

(13) And the leaning of courts, in without any other words or circummodern times, is in favour of tenancy stances which, either expressly or by in common, rather than joint-tenancy, implication, create a severance; there, where that question is open to con- no room is left for construction, and struction. (Rigden v. Vallier, 2 Ves. the devisees, or legatees, must take as sen. 258, see post, p. 193). Thus, when joint-tenants. (Whitmore v. Trelawney, a purchase agreement has been entered 6 Ves. 134. Morley v. Bird, 3 Ves. into by two purchasers, in terms primá 631. Davenport v. Hanbury, 3 Ves. facie joint, but there are circumstances 260. Perry v. Woods, 3 Ves. 206. from which it can be collected, that a Swaine v. Burton, 15 Ves. 371. Crooke joint-tenancy was not in contemplation; v. De Vandes, 9 Ves. 204). On the a court of equity will not execute the other hand, when a will contains words agreement by directing a conveyance importing the testator's intention, that in joint-tenancy; the intention, how- the interests he has devised shall be ever, to make the purchase as tenants taken by the objects of his bounty as in common will not be assumed as of tenants in common; but, in the same necessity. (Aveling v. Knipe, 19 Ves. will, he has used other words, which, 444).

in their ordinary construction, would If two persons advance money on a be inconsistent with that intention; mortgage, though the mortgage deed those inconsistent words will, if posmay be joint, yet the interest will not sible, be moulded so as not to debe subject to survivorship, when it stroy the effect of the words importing clearly appears the intention of the a tenancy in common. lenders was, that each should receive Great doubts have been entertained his own money again. (Petty v. Sty- by judges, both at law and in equity, ward, 1 Cha. Rep. 58; and see ante, as to words creating a joint-tenancy, or note (7).

a tenancy in common; (Fisher v. Wigg, But, where a devise, or bequest, is 1 P. Wms. 14); but it is settled, that made in terms creating a joint-tenancy, iu equity, at all events, the words


ship is taken away, and each may transmit his own part to his own heirs. Sometimes however it is disadvantageous to dissolve the joint-estate (14): as if there be joint-tenants for life, and they make partition, this dissolves the jointure; and, though before they each of them had an estate in the whole for their own lives and the life of their companion, now they have an estate in a moiety only for their own lives merely; and, on the death of either, the reversioner shall enter on his moiety (n). And therefore, if there be two joint-tenants for life, and one grants away his part for the life of his companion, it is a forfeiture (o): for, in the first place, by the severance of the jointure he has given himself in his own moiety only an estate for his own life; and then he grants the same land for the life of another; which grant by a tenant for his own life merely, is a forfeiture of his estate (p): for it is creating an estate which may by possibility last longer than that which he is legally entitled to.

III. An estate held in coparcenary is where lands of in- jll. Of estates heritance descend from the ancestor to two or more persons.

in co-parcenary. It arises either by common law or particular custom. By common law: as where a person seised in fee-simple, or in fee-tail dies, and his next heirs are two or more females, his daughters, sisters, aunts, cousins, or their representatives; in this case they shall all inherit, as will be more fully shewn, when we treat of descents hereafter; and these coheirs are then called coparceners; or, for brevity, parceners (n) 1 Jones, 55. (0) 4 Leon. 237.

(p) Co. Litt. 252.

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“ equally to be divided, equally, among, (14) So, there are cases in which a
between, respectively, share and share joint form of gift may be the only, or
alike," create a tenancy in common. at any rate the best, mode of causing a
(Perry v. Woods, 3 Ves. 206. Morley, bequest to go in the course intended by
v. Bird, 3 Ves. 631. Jenour v. Jenour, the testator; as, for instance, where a
10 Ves. 569. Lashbrook v. Cock, 2 bequest is made to infant natural chil-
Meriv. 70. Rigden v. Vallier, 2 Ves. dren, who, in the event of the death of
sen. 256. Heathe v. Heathe, 2 Atk. any, could not succeed to each other.
122. Denn v. Gaskin, Cowp. 660. (Stuart v. Bruce, 3 Ves. 363).
And see post, p. 193).

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