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time not essential to

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 coparce

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;z 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 severalty; 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

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.

6 241. 2 Ibid., 163, 164.

c 243-264. & Litt., N 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 feoffment 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., Copyh., 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, coAnd 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 statuta the partition under which must be per- has made a writing necessary.



er, d23

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 young,

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 But there are [1907 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 adVowson.

There is yet another consideration attending the estate in Hotchpos. 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

d Co. Litt., 166. 3 Rep., 22.

mon law, is chalked out and provid. e By statute 8 & 9W. III., c. 31, an ed.24 easier method of carrying on the pro- { Co. Litt., 164, 165. ceedings on a writ of partition, of lands 6 See page 115. held either in joint-tenancy, parcenary,

b Bracton, l. 2, c. 34. Litt., | 266– or common, than was used at the com- 273.

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

(23) It has been doubted whether the inn.] (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 determined 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


fusum cum sororibus, quantum pater aut frater ei dederit, quando ambulaverit ad maritum. With us it is denominated bringing those lands into hotchpot ;k which term I shall explain in the very words of Littleton 1 " it seemeth that this word hotchpot is, in English, a pudding; for in a pudding is not commonly put one thing alone, but one thing with other things together.” By this housewifely metaphor our ancestors meant to inform usm that the lands, both those given in frank-marriage and those descending in fee-simple, should be mixed and blended together, and then divided in equal portions among all the daughters. But this was left to the choice of the donee in frank-marriage;

and if she did not choose to put her lands into hotchpot, she ( 191 ) was presumed to be sufficiently provided for, and the rest of

the inheritance was divided among her other sisters. The law of hotchpot took place, then, only when the other lands descending from the ancestor were fee-simple; for if they descended in tail, the donee in frank-marriage was entitled to her share, without bringing her lands so given into hotchpot." 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

. frank-marriage shall be brought into hotchpot; for no others are looked upon in law as given for the advancement of the woman, or by way of marriage portion. And, therefore, as gifts in frank-marriage are fallen into disuse, I should hardly have mentioned the law of hotchpot, 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.

The estate in coparcenary may be dissolved, either by partition, which disunites the possession ;** by alienation of one parcener, which disunites the title, and may disunite the interest; or by the whole at last descending to and vesting in one single person, which brings it to an estate in severalty.

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(25) A partition effected by acommon Parceners, (C. 15).) It would have been law conveyance to a stranger, to the use otherwise if the conveyance had been to of the parceners in equal shares in sev, a stranger to his own use, and he had eralty, does not alter the course of de- subsequently reconveyed the several scent; but if the parceners had taken by shares to the respective parties. And descent from their mother, each share this is now always the proper course to would, after such partition, descend to pursue on a partition between coparcethe heirs ex parte materna. (5 T. R., ners, for a reason mentioned infra, p. 107, n.; 5 Ad. & El., 839; Com. Dig.. 240, n.

in common


IV. Tenants in common are such as hold by several and dis- IV. Tenancy tinct titles, but by unity of possession ; because none knoweth his own severalty, and, therefore, they all occupy 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 necessary unity of interest: one [192] 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 common may be created either by the destruc. How crea. tion of the two other estates, in joint-tenancy and coparcenary, or by special limitation in a deed." By the destruction of the two other estates, I mean such destruction as does not sever the unity of possession, but only the unity of title or interest ; as, if one of two joint-tenants in fee alienes his estate for the life of the alienee, the alienee and the other joint-tenant are tenants in common; for they now have 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 jointtenant 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. If one of two parceners

" alienes, the alienee and the remaining parcener are tenants in common ;8 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 the life estate, but they shall have several inheritances ;-) because they can not 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, P Litt., 0292.

• Ibid., 0 309. 9 Ibid., 293.

Ibid., 283. Ibid., 295. (26). A third way is by conveyance of under the head of express limitation, be

. an undivided share; as, if A., tenant of longs to this division. four acres in Dale, convey one acre of his estate in Dale to B., A. and B. there- (27) And the same is true of a limitaupon become tenants in common of the tion to two men, or two women, and estate, in the proportion of three to one. their heirs generally. (4 Mee. & W., One of the examples given in the text, 229.) * See ante, p. 180, n. *.

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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 de

scent. 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

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 vors a joint

joint-tenancy rather than tenancy in common ;u 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;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 ;?

;z 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., divisibilityb), 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 u Salk., 392.

a 1 Eq. Cas., Abr., 291. * Litt., D 298.

b 1 P. Wms., 17. * Ibid., 299.

<3 Rep., 39; 1 Vern., 32. [See 1 y See page 182.

Ventr., 216, 227.]
Poph., 52.



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(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; have been held to create a tenancy in Harg., Co. Litt., 190, b.) Mr. Christian common. (2 Atk., 121; 4 Bro., 15; 1 says, “ In ancient times joint-tenancy Cox's P. Wms., 14.) I should have was favored by the courts of law, be- little doubt but the same construction cause it was more convenient to the would now be put upon the word severlord and more consistent with feudal ally, which seems peculiarly to denota

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