their issues shall be tenants in common, because they must claim by different titles; one as heir of A., and the other as [193] heir of B.; and those two not titles by purchase, but descent. In short, whenever an 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 vors joint common. A tenancy in common may, also, be created by express limitation in a deed; but here care must be taken not to insert words which imply a joint estate; and then if lands be given to two or more, and it be not joint-tenancy, it must be a tenancy The law fa in common. But the law is apt, in its constructions, to favor tenant joint-tenancy rather than tenancy in common ;" 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; and, if one grants to another half his land, the grantor and grantee are also tenants in common; because, as has been beforey 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 to two persons to hold jointly and severally, is said to be a joint tenancy; because that is necessarily implied in the 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-tenancya (for it implies no more than the law has annexed to that estate, viz., divisibility"), yet in wills it is certainly a tenancy in common; 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 (28) Limitations in deeds operating principles; but those reasons have long under the Statute of Uses are constru- ceased, and a joint-tenancy is now every ed with the same liberality as wills (2 where regarded, as Lord Cowper says Ves. Sen., 252); and it is very doubtful it is in equity, as an odious thing. (1 whether, even in common-law convey- Salk., 158.) In wills the expressions ances, the words equally to be divided equally to be divided, share and share would not now be held to create a ten- alike, respectively, between, and among, ancy in common. (See 1 Wils., 341; Harg., Co. Litt., 190, b.) Mr. Christian says, "In ancient times joint-tenancy was favored by the courts of law, because it was more convenient to the lord and more consistent with feudal have been held to create a tenancy in common. (2 Atk., 121; 4 Bro., 15; 1 Cox's P. Wms., 14.) I should have little doubt but the same construction would now be put upon the word severally, which seems peculiarly to denote wording of grants makes it the most usual as well as the safest way, when a tenancy in common is meant to be created, to add [194] 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.* As to the incidents attending a tenancy in common: tenants Incidents. in common (like joint-tenants) are compellable, by the 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 joint-tenants 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. For by the common law no tenant in common was liable to account with his companion for embezzling the profits of the estate; though, if one actually turns the other out of possession, an action of ejectment will lie against him.f" But as 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 separation or division. But those words are only evidence of intention, and will not create a tenancy in common, where the contrary from other parts of the will appears to be the manifest intention of the testator. (3 Bro., 215.) "The words equally to be divided make a tenancy in common in surrenders of copyholds, and also in deeds which derive their operation from the Statute of Uses. (1 P. Wms., 14; 1 Wils., 341; 2 Ves., 257.) And though Lord Hardwicke seems to be of opinion (in 1 Ves., 165; 2 Ves., 257) that these words are not sufficient to create a tenancy in common-law conveyances, yet I am inclined to think that, in such a case, nothing but invincible authority would now induce the courts to adopt that opinion, and to decide in favor of a jointtenancy." f Ibid., 200. of a joint-tenancy. (Per Bayley, J., 1 (31) But adverse possession, or the uninterrupted receipt of the rents and profits, no demand being made by the co-tenant, or, if made, refused, and his title denied, is now held to be evidence of an actual ouster. And where one tenant in common has been in undisturbed possession for twenty years, in an ejectment brought against him by the co-tenant, the jury will be directed to presume an actual ouster, and, conse quently, to find a verdict for the defendant, the plaintiff's right to recover in ejectment after twenty years being tak en away by the Statute of Limitations. (Cowp.. 217.) [See stat. 3 & 4 Will. IV., c. 27, s. 12.] If a lessee of two tenants in common pay the whole of the rent to one after notice from the other to pay them each a moiety, the tenant in common, who gave such no(30) But a tenancy in common, with tice, may distrain for his share. (Har benefit of survivorship, may exist with- rison v. Barnby, 5 T. R., 246; 5 Barn. out being a joint-tenancy, because sur- & Ald., 851.)-[CHRISTIAN.] vivorship is not the only characteristic (29) And now, again, are not, as has been already noticed, ante, p. 185, n. (14). The only means of compulsion is by bill in equity. *See ante, p. 180, n. *. How dissolved. joined in actions, unless in the case where some entire and indivisible thing is to be recovered), 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. By uniting all the titles and interests in one tenant, by purchase or otherwise; which brings the whole to one severalty." 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. B Litt., § 311. (32) The rule which determines whether tenants in common should sue jointly or severally, is founded upon the nature of their interest in the matter or thing which is the cause of action. For injuries to their common property, as trespass quare clausum fregit, or a nuisance, &c., or the recovery of any thing in which they have a common right, as for rent reserved by them, or waste upon a lease for years, they should all be parties to the action; but they must sue severally in a real action generally, for they have several titles. (Com. Dig., Abatement, (E. 10); Co. Litt., 197.) But if waste be committed where there is no lease by them all, the action by one alone is good. (2 Mod., 62.) But one 230 h Co. Litt., 197. tenant in common can not avow alone for taking cattle damage-feasant, but he ought also to make cognizance as bailiff of his companion. (2 H. Bl., 386; Sir W. Jones, Rep., 253.)-[CHITTY.] (33) This is rather a union than a dissolution. (34) This partition can only be effect ed by mutual conveyances. (Co. Litt., 169, a.) It may be compelled by bill in Chancery. (Vide ante, p. 185.) But it seems that the Court of Chancery could not compel a partition of copy. holds until that power was conferred by the recent statute 4 & 5 Vict., c. 35, s. 85. (11 Sim., 315.) CHAPTER XIII. OF THE TITLE TO THINGS REAL, IN GENERAL. THE foregoing chapters having been principally employed in Title to things real. defining the nature of things real, in describing the tenures by which they may be holden, and in distinguishing the several kinds of estate or interest that may be had therein, I come now to consider, lastly, the title to things real, with the manner of acquiring and losing it. ed. A title is thus defined by Sir Edward Coke,a titulus est justa Title defin causa possidendi id quod nostrum est; or, it is the means whereby the owner of lands hath the just possession of his property. There are several stages or degrees necessary to form a complete title to lands and tenements. We will consider them in a progressive order. session. I. The lowest and most imperfect degree of title consists in I. Mere posthe mere naked possession, or actual occupation of the estate; without any apparent right, or any shadow or pretense of right, to hold and continue such possession. This may happen when one man invades the possession of another, and by force or surprise turns him out of the occupation of his lands; which is termed a disseizin, being a deprivation of that actual seizin, or Disseizin corporeal freehold of the lands, which the tenant before enjoyed. Or it may happen that, after the death of the ancestor, and before the entry of the heir, or after the death of a par- [196] ticular tenant, and before the entry of him in remainder or reversion, a stranger may contrive to get possession of the vacant land, and hold out him that had a right to enter. In all which cases, and many others that might be here suggested, the wrong-doer has only a mere naked possession, which the rightful owner may put an end to by a variety of legal remedies, as will more fully appear in the third book of these Commentaries. But in the mean time, till some act be done by the rightful owner to devest this possession and assert his title, such actual possession is, prima facie, evidence of a legal title in the possessor; and it may, by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title. And, at all events, without such actual possession no title can be completely good. a 1 Inst., 345. (1) For more upon disseizin, see vol. iii., p. 167, et seq. II. Right of possession. II. The next step to a good and perfect title is the right of possession, which may reside in one man, while the actual possession is not in himself, but in another. For if a man be disseized, or otherwise kept out of possession, by any of the means before mentioned, though the actual possession be lost, yet he has still remaining in him the right of possession; and may exert it whenever he thinks proper, by entering upon the disseizor, and turning him out of that occupancy which he has so illegally gained. But this right of possession is of two sorts: an apparent right of possession, which may be defeated by proving a better; and an actual right of possession, which will stand the test against all opponents. Thus, if the disseizor, or other wrong-doer, dies possessed of the land whereof he so became seized by his own unlawful act, and the same descends to his heir; now by the common law the heir hath obtained an ap parent right, though the actual right of possession resides in the person disseized; and it shall not be lawful for the person disseized to devest this apparent right by mere entry or other act of his own, but only by an action at law ;b2 for, until the contrary be proved by legal demonstration, the law will rather pre[197] sume the right to reside in the heir, whose ancestor died seized, than in one who has no such presumptive evidence to urge in his own behalf. Which doctrine, in some measure, arose from the principles of the feodal law, which, after feuds became hereditary, much favored the right of descent, in order that there might be a person always upon the spot to perform the feodal duties and services; and, therefore, when a feudatory died in battle, or otherwise, it presumed always that his children were entitled to the feud, till the right was otherwise determined by his fellow-soldiers and fellow-tenants, the peers of the feodal court. But if he who has the actual right of possession puts in his claim, and brings his action within a reasonable time, and can prove by what unlawful means the ancestor became seized, he will then, by sentence of law, recover that possession to which he hath such actual right. Yet, if he omits to bring this his possessory action within a competent time, his adversary may imperceptibly gain an actual right of possession, in consequence of the other's negligence.' And by this, and certain other means, the party kept out of possession may have nothing left in him but what we are next to speak of, viz. : III. Mere right of property. III. The mere right of property, the jus proprietatis, without b Litt., § 385. c Gilb., Ten., 18. (2) That is to say, a real action. Real ute, sect. 39. (Vide infra, vol. iii., actions (with some few exceptions) hav- 174.) ing been abolished by the stat. 3 & 4 Will. IV., c. 74, this effect of a descent from a disseizor, called a descent cast, was also taken away by the same stat P. (3) As to this limitation of the time for recovering real property, vide infra, p. 266, n. |
