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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 ten. ancy 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.f16 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 ;i for it destroys the unity both of title and interest." And whenever or by whatever means d Litt., 0292.

& Cro. Eliz., 470. • Jus accrescendi præfertur ultimæ ro

h

2 Rep., 60. Co. Litt., 182. luntati.-Co. Litt., 185.

i Litt., \ 302, 303. | Litt., Ø 287.

only compulsory mode of effecting a Bac. Ab., Joint-tenants (I.), 7; Harg.,
partition is now by bill in Chancery, Co. Litt., 169, a; 2 P. Wms., 519; 1
in which proceeding, however, the pro- Mad., 214; 1 Myl. & K., 331. See 3
visions of the stat. 8 & 9 W. III., c. 31, Myl. & Cr., 157 ; 8 Sim., 620.)*
are not disregarded. (2 Y. & C., 586.)
Upon a bill for partition, the court first (15) A joint-tenant who wishes to de-
ascertains the rights and interests of the vise his estate must first sever it. And
parties, and then directs a commission if a joint-tenant of real property devises
to issue to make the partition required, his interest in premises, and after exe-
and upon return of that commission, and cution of the will there is a partition of
confirmation of that return by the court, the estate, the testator's share did not
the partition is finally completed by mu- formerly pass by the devise, unless there
tual conreyances of the allotments made was a republication of the will subse-
to the several parties. But if the in- quent to the partition. (3 Burr., 1488;
fancy of any of the parties, or other cir- Amb., 617.) But now, under the stat.
cumstances, prevent such mutual con. 11 Will. IV. & 1 Vict., c. 26, although
veyances, the decree can only extend a joint-tenant can not defeat his co-ten-
to give possession and enjoyment until ant's right of survivorship, his devise,
conveyances can be made. An infant made during the joint-tenancy, will op-
must have a day to show cause against erate upon a share coming to him sub-
a decree after attaining twenty-one; and sequently by partition, or upon the en-
if cause be not shown, or being shown, tirety coming by survivorship.
is not allowed, the decree may then be
extended to compel mutual conveyan- (16) The jointure in the case put is

(Mitford's Pleading, 97, 3d ed.; only severed for the time. If A. and B.

ces.

In New York, a partition may be effected either in Chancery or in the courts of common law.—(2 R. S., 317, Ø 1; 329, 0 79.)

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;! 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;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.

when advantageous.

III. Estate in coparcenary.

m

III. An estate held in coparcenary is where lands of inherit* Nihil de re accrescit ei, qui nihil Ibid., N 304. [See 3 Ad. & El., in re, quando jus accresceret, habet.- 75.] Co. Litt., 188.

n 1 Jones, 55. | Litt., \ 294.

• 4 Leon., 236.
p Co. Litt., 252.

are joint-tenants in fee, and A. lease for sion can not be held in joint-tenancy;
life to C., and die, living B. and C., the and the present freehold of inheritance
reversion in a moiety will descend to which B. has can not be separated into
A.'s heir, and not survive to B.; and, an estate for the life of C. and a rever-
on the other hand, if B. die, living A. sion, in order that the latter may unite
and C., the freehold and inheritance in with the reversion in A.; although this
a moiety will descend to B.'s heir. In might have been done by an original
either case, the jointure is forever sev- limitation. (Co. Litt., 191, b; 2 Cox,
ered. But if c. die, living A. and B., 155.)
then the jointure revives as at first.
The reason of these distinctions is, that (17) 5 Nev. & M., 372; 3 Ad. & El.,
a present estate of freehold and a rever- 75.

ance descend from the ancestor to two or more persons. It arises either by common law or particular custom. By common law: as where a person seized 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 shown when we treat of descents hereafter; and these coheirs are then called coparceners; or, for brevity, parceners only.q* Parceners by particu- Parceners

by custom. lar custom are where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, &c. And, in either of these cases, all the parceners put together make but one heir, and have but one estate among them.810

The properties of parceners are in some respects like those (188) of joint-tenants; they having the same unities of interest, title, Properties and possession. They may sue and be sued jointly for matters relating to their own lands ;t and the entry of one of them shall, in some cases, enure as the entry of them all.u They can not have an action of trespass against each other; but herein they differ from joint-tenants, that they are also excluded from maintaining an action of waste;w for coparceners could at all times put a stop to any waste by writ of partition, but till the statute of Henry the Eighth joint-tenants had no such power. Parceners also differ materially from joint-tenants in four other points: 1. They always claim by descent, whereas joint-tenants always claim by purchase. Therefore, if two sisters purchase lands, to hold to them and their heirs, they are not parceners, but joint-tenants ;t and hence it likewise follows that no lands 9 Litt., V 241, 242.

u Ibid., 188, 243. 1 Ibid., V 265.

* 2 Inst., 403. • Co. Litt., 163.

* Litt., § 254. Ibid., 164.

(18) A very subtle distinction, how- pus, sed diversi hæredes, ubi tenemenever, is taken between coparcenary at tum partibile est inter plures cohærecommon law and a customary partible des petentes qui descendant de eodem descent. “Well said Littleton, ' by the stipite et semper solent dividi ab anticustom,' for sons are parceners in re- quo.' Bract., lib. 5, fol. 428.” (Co. spect of the custom of the fee or inher- Litt., 176, a.) itance, and not in respect of their persons, as daughters and sisters, &c., be. (19) Semble, therefore, that coparce• Et sunt participes quasi partem capi- ners are entitled to be admitted to copentes, &c., ratione ipsius rei quæ parti- yhold tenements as one heir, and upon bilis est, et non ratione personarum quæ payment of one set of fees. (3 B. & C., non sunt quasi unus hæres et unum cor- 173.)-[Chitty.]

* In New York, the law no longer recognizes such an estate as that of coparcenary, at least as it respects the daughters and sisters of the person dying seized. By the Statute of Descents, the children of a persou dying seized of land become entitled to the inheritance in equal parts, as tenants in common, the statute making no distinction between male and female; and the law is the same as to sis

As estates descend in every state to all the children equally (says Chancellor Kent), there is no substantial difference left between coparceners and tenants in common, and the technical distinction between coparcenary and estates in common may be considered as essentially extinguished in the United States.—(4 Kent's Comm., 366.)

ters.

time not es

can be held in coparcenary but estates of inheritance, which are of a descendible nature; whereas not only estates in fee

and in tail, but for life or years, may be held in joint-tenancy. Unity of

2. There is no unity of time necessary to an estate in coparcesential to

nary. For if a man hath two daughters, to whom his estate coparcenary. descends in coparcenary, and one dies before the other; the

surviving daughter and the heir of the other, or, when both are dead, their two heirs, are still parceners ;y the estates vesting in each of them at different times, though it be the same quantity of interest, and held by the same title. 3. Parceners, though they have a unity, have not an entirety of interest." They are properly entitled each to the whole of a distinct moiety ;? and, of course, there is no jus accrescendi, or survivorship, between them; for each part descends severally to their respective heirs, though the unity of possession continues. And as long as the lands continue in a course of descent, and united in

possession, so long are the tenants therein, whether male or fe[189] male, called parceners. But if the possession be once severed

by partition, they are no longer parceners, but tenants in sev. eralty; or if one parcener alienes her share, though no partition be made, then are the lands no longer held in coparcenary, but

in common.a Partition. Parceners are so called, saith Littleton, because they may

be constrained to make partition." And he mentions many methods of making it ;c four of which are by consent, and one by compulsion. The first is, where they agree to divide the lands into equal parts in severalty, and that each shall have such a determinate part." The second is, when they agree to choose some friend to make partition for them, and then the sisters shall choose each of them her part according to seniority of age; or otherwise, as shall be agreed. The privilege of seniority is in this case personal; for if the eldest sister be y Co. Litt., 164, 174.

b 241. 3 Ibid., 163, 164.

e § 243-264. a Litt., V 309.

(20) 5 B. & Ad., 575; 2 Nev. & M., fected by conveyance, in the same man508.

ner as partitions between joint-tenants.

Parceners of a copyhold could not make (21) Coparceners may convey to each partition without the sanction of the other, both by feoffinent and by release, lord. (P. 41 Eliz., B. R. Fuller, Hal. because their seizin to some intents is MSS. ; 11 Sim., 315. But see 2 Watk., joint, and to some several. (Co. Litt., Coryh., 194; and, now, stat. 4 & 5 Vict., 163, b, 200, b.) Whereas joint-tenants c. 35, s. 85.) can release to, but not enfeoff each other, because the freehold is joint. (Ibid.) (22) Before the Statute of Frauds, co And one tenant in common may enfeoff parceners might have partitioned their his companion, but can not release to inheritance by parol, even where it was him, because the freehold is several. held in reversion. (Litt., 8. 250; Co. (Ibid.)-[Chitty.]

Litt., 169, a.) And a rent charge might Such partitions are now usually made have been granted to one parcener, out either by mutual consent and conveyan- of the allotment of the other, by mere ces, or by means of a bill in Chancery, parol. (Litt., s. 252.) But that statute the partition under which must be per- has made a writing necessary.

dead, her issue shall not choose first, but the next sister. But, if an advowson descend in coparcenary, and the sisters can not agree in the presentation, the eldest and her issue, nay, her husband, or her assigns, shall present alone, before the younger.da And the reason given is, that the former privilege of priority in choice upon a division arises from an act of her own, the agreement to make partition; and, therefore, is merely personal: the latter, of presenting to the living, arises from the act of the law, and is annexed, not only to her person, but to her estate also. A third method of partition is, where the eldest divides, and then she shall choose last ; for the rule of law is, cujus est divisio, alterius est electio. The fourth method is where the sisters agree to cast lots for their shares. And these are the methods by consent. That by compulsion is, where one or more sue out a writ of partition against the others; whereupon the sheriff shall go to the lands, and make partition thereof by the verdict of a jury there impaneled, and assign to each of the parceners her part in severalty.e? But there are [190] some things which are in their nature impartible. The mansion-house, common of estovers, common of piscary uncertain, or any other common without stint, shall not be divided; but the eldest sister, if she pleases, shall have them, and make the others a reasonable satisfaction in other parts of the inheritance; or, if that can not be, then they shall have the profits of the thing by turns, in the same manner as they take the ad vowson.f

There is yet another consideration attending the estate in Hotchpot. coparcenary: that, if one of the daughters has had an estate given with her in frank-marriage by her ancestor (which, we may remember, was a species of estates-tail, freely given by a relation for advancement of his kinswoman in marriages), in this case, if lands descend from the same ancestor to her and her sisters in fee-simple, she or her heirs shall have no share of them, unless they will agree to divide the lands so given in frank-marriage in equal proportion with the rest of the lands descending.h This mode of division was known in the law of the Lombards;i which direct the woman so preferred in marriage, and claiming her share of the inheritance, mittere in con

3 Rep., 22.

d Co. Litt., 166.

mon law, is chalked out and provid. By statute 8 & 9 W. III., c. 31, an ed.24 easier method of carrying on the pro- f Co. Litt., 164, 165. ceedings on a writ of partition, of lands & See page 115. held either in joint-tenancy, parcenary, h Bracton, 1. 2, c. 34. Litt., 0266or common, than was used at the com- 273.

i L. 2, t. 14, c. 15.

(23) It has been doubted whether the in.) (See Burn's Ecclesiastical Law, grantee of the eldest sister shall have the vol. i., 15; 7 Sim., 257.) first and sole presentation after death. (Harg., Co. Litt., 266.) But it was ex- (24) The proceeding at common law pressly deterrnined in favor of such a by writ of partition has been abolished. grantee in 1 Ves. Sen., 340.)—[Christ. (Ante, p. 185, n. (14).) Vol. II.-P

225

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