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frankmarriage: and if she did not chuse to put her lands into hotch-pot, she was presumed to be sufficiently *provided [ *191 ] for, and the rest of the inheritance was divided among her other sisters. The law of hotch-pot took place then only, when the other lands descending from the ancestor were fee-simple; for if they descended in tail, the donee in frankmarriage was entitled to her share, without bringing her lands so given into hotch-pot (n). And the reason is, because lands descending in fee-simple are distributed by the policy of law, for the maintenance of all the daughters; and, if one has a sufficient provision out of the same inheritance, equal to the rest, it is not reasonable that she should have more: but lands descending in tail are not distributed by the operation of the law, but by the designation of the giver, per formam doni: it matters not therefore how unequal this distribution may be. Also no lands, but such as are given in frankmarriage, shall be brought into hotch-pot; for no others are looked upon in law as given for the advancement of the woman, or by way of marriage-portion(o). And, therefore, as gifts in frankmarriage are fallen into disuse, I should hardly have mentioned the law of hotch-pot, had not this method of division been revived and copied by the statute for distribution of personal estates, which we shall hereafter consider at large (19). The estate in coparcenary may be dissolved, either by par- The modes by
which an estate tition, which disunites the possession; by alienation of one
in coparcenary parcener, which disunites the title, and may disunite the may be dissolvinterest; or by the whole at last descending to and vesting in one single person, which brings it to an estate in severalty.
IV. Tenants in common are such as hold by several and iv. Of tenants distinct titles, but by unity of possession; because none knoweth his own severalty, and therefore they all occupy
(n) Litt. s. 274.
(6) Ibid. 275.
(19) See post, chap. 32, pp. 515, 517, 519.
promiscuously (p). This tenancy therefore happens where there is a unity of possession merely, but perhaps an entire disunion of interest, of title, and of time. For if there be two tenants in common of lands, one may hold his part in
fee-simple, the other in tail, or for life; so that there is no [ 192 ] *necessary unity of interest: one may hold by descent, the *
other by purchase; or the one by purchase from A., the other by purchase from B.; so that there is no unity of title: one's estate may have been vested fifty years, the other's but yesterday; so there is no unity of time. The only unity there is, is that of possession; and for this Littleton gives the true reason, because no man can certainly tell which part is his own: otherwise even this would be soon
destroyed. Tenancy in com- Tenancy in common may be created, either by the demon may be
struction of the two other estates, in joint-tenancy and cocreated by the
parcenary, or by special limitation in a deed. By the de
struction of the two other estates, I mean such destruction joint-tenancy or as does not sever the unity of possession, but only the unity where there is of title or interest: As, if one of two joint-tenants in fee no partition
alienes his estate for the life of the alienee, the alienee and made;
the other joint-tenant are tenants in common; for they have now several titles, the other joint-tenant by the original grant, the alienee by the new alienation (9); and they also have several interests, the former joint-tenant in fee-simple, the alienee for his own life only. So, if one joint-tenant gives his part to A. in tail, and the other gives his to B. in tail, the donees are tenants in common, as holding by different titles and conveyances (r).
If one of two parceners alienes, the alienee and the remaining parcener are tenants in common (s); because they hold by different titles, the parcener by descent, the alienee by purchase. So likewise, if there be a grant to two men, or two women, and the heirs of their bodies, here the grantees shall be joint-tenants of
dissolution or destruction of an estate in
the life-estate, but they shall have several inheritances; because they cannot possibly have one heir of their two bodies, as might have been the case had the limitation been to a man and woman, and the heirs of their bodies begotten(t): and in this, and the like cases, their issues shall be tenants in common; because they must claim by different titles, one as heir of A., and the other as heir of B.; and those two not titles by *purchase, but descent. In short, whenever an [ * 193 ] estate in joint-tenancy or coparcenary is dissolved, so that there be no partition made, but the unity of possession continues, it is turned into a tenancy in common. A tenancy in common may also be created by express li- Or by express
limitation in a mitation in a deed: but here care must be taken not to in
deed, sert words which imply a joint estate (20); and then if lands be given to two or more, and it be not joint-tenancy, it must be a tenancy in common. But the law is apt in its constructions to favour joint-tenancy rather than tenancy in common(u) (21); because the divisible services issuing from land (as rent, &c.) are not divided, nor the entire services (as fealty) multiplied, by joint-tenancy, as they must necessarily be upon a tenancy in common. Land given to two, to be holden the one moiety to one, and the other moiety to the other, is an estate in common (w); and, if one grants to another half his land, the grantor and grantee are also tenants in common (r): because, as has been before(y) observed, joint-tenants do not take by distinct halves or moieties; and by such grants the division and severalty of the estate is so plainly expressed that it is impossible they should take a joint-interest in the whole of the tenements. But a devise Or will. a .
. to two persons to hold jointly and severally, is said to be a joint-tenancy (2); because that is necessarily implied in the (t) Litt. 283.
(x) Ibid. 299. (u) Salk. 392.
(y) See p. 182. (w) Litt. s. 298.
(2) Poph. 52.
(20) See ante, the conclusion of note (13) to this chapter.
word “jointly,” the word “ severally” perhaps only implying the power of partition: and an estate given to A. and B., equally to be divided between them, though in deeds it hath been said to be a joint-tenancy (a), (for it implies no more than the law has annexed to that estate, viz. divisibility (6),) yet in wills it is certainly a tenancy in common (c); because the devisor may be presumed to have meant what is most beneficial to both the devisees, though his meaning is imperfectly expressed. And this nicety in the wording of
grants makes it the most usual as well as the safest way, [ *194 ] when a tenancy in common *is meant to be created, to add
express words of exclusion as well as description, and limit the estate to A. and B., to hold as tenants in common and
not as joint-tenants. Of the incidents As to the incidents attending a tenancy in common: tenattending a ten- ants in common (like joint-tenants) are compellable by the ancy in com
statutes of Henry VIII. and William III., before mentioned (d), to make partition of their lands; which they were not at common law. They properly take by distinct moieties, and have no entirety of interest; and therefore there is no survivorship between tenants in common. Their other incidents are such as merely arise from the unity of possession; and are therefore the same as appertain to jointtenants merely upon that account: such as being liable to reciprocal actions of waste, and of account, by the statutes of Westm. 2, c. 22, and 4 Ann. c. 16, $ 27. For by the common law no tenant in common was liable to account with his companion for embezzling the profits of the estate (e); though, if one actually turns the other out of possession, an action of ejectment will lie against him (f) (22). But, as (a) 1 Eq. Cas. Abr. 291.
(d) Pag. 185 and 189. (b) 1 P. Wms. 17.
(e) Co. Litt. 199. (c) 3 Rep. 39. 1 Ventr. 32.
(f) Ibid, 200.
(22) In the case of Fairclaim v. estate, for any length of time, by one Shackleton, (5 Burr. 2607, 2608), it tenant in common, could never operate seems to have been considered that the as a disseisin of the other tenant in perception of the whole profits of an common. But, not long afterwards, it (g) Litt. s. 311.
for other incidents of joint-tenants, which arise from the privity of title, or the union and entirety of interest, (such as joining or being joined in actions (g), unless in the case where some entire or indivisible thing is to be recovered (h),) these are not applicable to tenants in common whose interests are distinct, and whose titles are not joint but several.
Estates in common can only be dissolved two ways: 1. Of the modes By uniting all the titles and interests in one tenant, by pur- in common may
by chase or otherwise; which brings the whole to one several- be dissolved. ty: 2. By making partition between the several tenants in common, which gives them all respective severalties. For indeed tenancies in common differ in nothing from sole estates but merely in the blending and unity of possession. And this finishes our inquiries with respect to the nature of estates.
(h) Co. Litt. 197.
was determined, in the case of Doe v. bar has been fixed by statute to the Prosser, (Cowp. 218), that the term remedy at common law, the remedy "actual ouster" did not necessarily in a court of equity has, in analogous imply some act accompanied with force; cases, been confined to the same period, that a man might come in by rightful (Marquis of Cholmondeley v. Lord Clinpossession, yet hold over adversely with- ton, 2 Jac. & Walk. 151, in the judgout a title; and that, if he did so, such ment upon which case all the leading holding over might be equivalent to authorities are cited). Even in cases an actual ouster.
of fraud, courts of equity take the staIt was adjudged, therefore, that thir- tutes of limitation for their guides in gety-six years' sole and uninterrupted neral. (Stackhouse v. Barnston, 10 Ves. possession by one tenant in common, 467. Bonney v. Ridgard, 1 Cox, 149. without any account to, or demand Beckford v. Wade, 17 Ves. 97). And made, or claim set up by his compa- the objection of length of time may be nion, was a sufficient ground for a jury taken by demurrer, when a bill is so to presume an actual ouster of the co. framed as to be open to that mode of
defence; but as the plaintiff's pleader A plaintiff's right to recover in eject- will, of course, generally take care this ment, after twenty years, is taken away shall not be the case, a plea is the more by the statute of limitations. And usual mode of taking advantage of courts of equity have, at all times, upon length of time in bar of a plaintiff's general principles of their own, even claim. (Foster v. Hodson, 19 Ves. 184. where there was no statutable bar, re- Lord Shipbrook v. Lord Hinchinbroke, fused relief to stale demands, where 13 Ves. 397. Hodle v. Healey, 1 Ves. the party has slept upon his rights for & Bea. 539). a great length of time: and where a