In all actions, also, relating to their joint estate, one joint-tenant can not sue or be sued without joining the other.p But if two. [183] or more joint-tenants be seized of an advowson, and they present different clerks, the bishop may refuse to admit either; because neither joint-tenant hath a several right of patronage, but each is seized 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 can not have an action against another for trespass in respect of his land; for each has an equal right to enter on any part of it. But one joint-tenant is not capable, by himself, to do any act which may tend to defeat or injure the estate of the other: as to let leases,' or to grant copyholds; and if any waste be done which tends to the destruction of the inheritance, one joint-tenant may have an action of waste against the other, by construction of the statute Westm. 2, c. 22. 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," 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.10 P Co. Litt., 195. a Ibid., 186. 3 Leon., 262. (8) If four joint-tenants jointly demise from year to year, such of them as give notice to quit may recover their several shares in ejectment on their several demises. (3 Taunt., 120.)-[CHITTY.] (9) A lease by a joint-tenant is operative to the extent of his share, being a severance pro tanto, and binding on his co-tenant surviving (Cro. Jac., 52, 91, 417); but it seems that the rent reserved upon such lease ceases with the life of the grantor. (Dy., 187; Co. Litt., 185, a.) A lease by a joint-tenant for years is a complete severance of the joint-tenancy. (Co. Litt., 192, a.) For 1 Leon., 234 merly, charges by a joint-tenant, which did not operate to sever the tenancy, were not binding on his co-tenant surviving (Co. Litt., 184, a); but now a judgment or decree against a joint-tenent, although it is no severance, binds the estate to the extent of his share. (Stat. 1 & 2 Vict., c. 110, s. 11.) (10) This action is now obsolete; the practice is to apply to a court of equity to compel an account; which jurisdiction is also resorted to in order to obtain a partition. (Com. Dig., Chanc., (3 V., 6), & (4 E.); Mitford's Pleading, 109.)* * The action of account can not be said to be obsolete in New York, although, in a late case, the judges of the Supreme Court showed a strong disposition so to consider it. Not only is the action of account given, in the revision of 1830, to joint-tenants and tenants in common as between each other (1 R. S., 750, § 9), but it is authorized to be maintained by and against their executors (2 R. S., 113, § 2). ship. From the same principle, also, arises the remaining grand Survivorincident of joint-estates; viz., the doctrine of survivorship; by which, when two or more persons are seized of a joint estate of inheritance, for their own lives, or pour autre 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 entitled to the whole estate, whatever it be, whether an inheritance, or a common freehold only, or even a less estate. This is the natural and [184] regular consequence of the union and entirety of their interest. The interest of 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 devested 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 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. 11 This right of survivorship is called by our ancient authors* the jus accrescendi, because the right upon the death of one joint-tenant accumulates and increases to the survivors; or, as they themselves express it, "pars illa communis accrescit superstitibus, de persona in personam, 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, can be a joint-tenant with a private person. For here Litt., § 280, 281. * Bracton, 1. 4, tr. 3, c. 9, § 3. Fleta, 1. 3, c. 4. y Co. Litt., 190. Finch, L., 83. (11) And that free from any claim of inheritance that was in the deceased dower or of courtesy on account of the joint-tenant. (Ante, p. 131, n (41).) Besides, the time within which the action is to be brought, and the mode of conducting it in part, are made the subject of statutory regulation.-(2 R. S., 295, § 18; 385, § 49.) Joint-tenants and tenants in common may also maintain an action for money had and received against each other.-(1 R. S., 750, § 9; 4 Kent's Comm., 359, n. c.) [185] ancy, how severed or Partition. is no mutuality; the private person has not even the remotest chance of being seized 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 3. Joint-ten- may be severed and destroyed. And this may be done by destroying any of its constituent unities. 1. That of time, which destroyed. respects only the original commencement of the joint estate, can not, 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 seized per my et per tout, every thing that tends to narrow that interest, so that they shall not be seized throughout the whole and throughout every part, is a severance and 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 ;b for this being an estate originally created by the act 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. a Co. Litt., 188, 193. Thus, by the civil law, Nemo invi- 3. 12, 6, 26, § 4.) And again: Si non omnes qui rem communem habent, sed certi ex his, dividere desiderant; hoc judicium inter eos accipi potest.—(Ff., 10, 3, 8.) (12) But Lord Coke says expressly, gal maxim, Jus accrescendi inter merca"There may be joint-tenants, though tores pro beneficio commercii locum non there be not equal benefit of survivor- habet. (Co. Litt., 182. See p. 399, (13) But this partition of a joint estate of freehold can not be effected without a deed. (Litt., s. 290; Co. Litt., 169, a, 187, a.)* ship; as, if a man let lands to A. and B. post.)-[CHRISTIAN.] * A parol partition between tenants in common, followed up by a continued possession, has been held valid.-(Jackson v. Harder, 4 Johns. R., 202; 14 Wendell, 609.) The jointure may be destroyed by destroying the unity of title. Alienation. As, if one joint-tenant alienes and conveys 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 a devise of one's share by will is no severance of the jointure; for no testament takes [186] effect till after the death of 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 othere) is already vested.f1 4. It may also be destroyed by destroying the Merger 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 ; 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. In like manner, if a joint-tenant in fee makes a lease for life of his share, this defeats the jointure; for it destroys the unity both of title and interest." And whenever or by whatever means d Litt., 292. • Jus accrescendi præfertur ultimæ voluntati.-Co. Litt., 185. f Litt., § 287. only compulsory mode of effecting a partition is now by bill in Chancery, in which proceeding, however, the provisions of the stat. 8 & 9 W. III., c. 31, are not disregarded. (2 Y. & C., 586.) Upon a bill for partition, the court first ascertains the rights and interests of the parties, and then directs a commission to issue to make the partition required, and upon return of that commission, and confirmation of that return by the court, the partition is finally completed by mutual conveyances of the allotments made to the several parties. But if the infancy of any of the parties, or other circumstances, prevent such mutual conveyances, the decree can only extend to give possession and enjoyment until conveyances can be made. An infant must have a day to show cause against a decree after attaining twenty-one; and if cause be not shown, or being shown, is not allowed, the decree may then be extended to compel mutual conveyan(Mitford's Pleading, 97, 3d ed.; ces. Cro. Eliz., 470. h 2 Rep., 60. Co. Litt., 182. i Litt., § 302, 303. Bac. Ab., Joint-tenants (I.), 7; Harg., (15) A joint-tenant who wishes to de- (16) The jointure in the case put is only severed for the time. If A. and B. * In New York, a partition may be effected either in Chancery or in the courts of common law.-(2 R. S., 317, § 1; 329, § 79.) when advantageous. the jointure ceases or is severed, the right of survivorship, or jus accrescendi, the same instant ceases with it. 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 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 no longer have 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] In general, it is advantageous for the joint-tenants to dissolve Severance, the jointure; since thereby the right of survivorship is taken away, and each may transmit his own part to his own heirs. Sometimes, however, it is disadvantageous to dissolve the joint estate; 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 reForfeiture. versioner shall enter on his moiety." 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; 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. Estate in coparcenary. III. An estate held in coparcenary is where lands of inherit- Litt., § 294. n1 Jones, 55. sion can not be held in joint-tenancy; and the present freehold of inheritance which B. has can not be separated into an estate for the life of C. and a reversion, in order that the latter may unite with the reversion in A.; although this might have been done by an original limitation. (Co. Litt., 191, b; 2 Cox, 155.) are joint-tenants in fee, and A. lease for (17) 5 Nev. & M., 372; 3 Ad. & El., |