Unity of possession. Thus, where a feoffment is made to the use of a man, and such wife as he shall afterwards marry, for term of their lives, and he afterwards marries; in this case the husband and wife has a joint-estate, though vested at different times (7): because the use of the wife's estate is in abeyance and dormant till the intermarriage; and, being then awakened, has relation back, and takes effect from the original time of creation. Similar results were arrived at under the Statute of Wills, and occur now daily (m). Lastly, in joint-tenancy there must be an unity of possession. Joint-tenants are said to be seised per my et per tout, which expression indicates, in accordance with the fact, that for some purposes the possession is only of a part (my, moitié, or moiety, denoting a part, usually a half (n) ), and for other purposes the possession is of the whole (o). The seisin of each of them is of the whole, one is not seised of one part and the other of the other part, neither can one be exclusively seised of one acre, and his companion of another; but each has an undivided moiety of the whole, and not the whole of an undivided moiety (p). *And therefore, if an estate in fee be given to a man and his wife by [*348] such an assurance as would create a joint-estate in two persons not man and wife, they are neither properly joint-tenants, nor tenants in common: for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout et non per my: the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor (g). (308) "Also if a joint estate be made of land to a husband and wife, and to a third person, in this case the husband and wife have in law, in their right, but the moiety, and the third person shall have as much as the husband and wife, viz. the other moiety" (r). The application of this rule laid down by Littleton, is sometimes not unattended with difficulty, arising from the varied forms in which a gift to several persons may be made (s). Upon these principles, of a thorough and intimate union of interest and (1) Ib.; Blamford v. Blamford, 3 Bulstr. 101; Sussex v. Temple, 1 Lord Raym. 310; Mutton's Case, Dyer, 274; 1 Rep. 101. (m) Where lands were devised to a woman and her children, begotten or to be begotten by W. A., and their heirs for ever, it was held that she and all her children took as jointtenants, and it was no objection that by this means the several estates might commence at different times. Oates v. Jackson, 2 Stra. 1172; 2 Cruise, 503. See also Stratton v. Best, 2 B. C. C. 233; Sugd. Gilb. Uses, 134; Fearne, C. R. 312, 9th ed. (n) The word moiety has been used to denote one of any number of equal parts. See Shakespeare, Henry IV., part i, act 3, sc. (p) Quilibet totum tenet et nihil tenet; scilicet, totum in communi, et nihil separatim per se. Bract. 1. 5, tr. 5, c. 26. (q) Litt. s. 665; Co. Litt. 187; Bro. Abr. t. Cui in vita, 8; Back v. Andrews, 2 Vern. 120; 2 Lev. 39. (r) Litt. s. 291; Doe v. Wilson, 4 B. & Al. 303. (8) Warrington v. Warrington, 2 Hare, 54. See Doe v. Parratt, 5 T. R. 652. (308) This rule has been recognized by the courts of several of the States. Harding v. Springer, 14 Me. 407; Brownson v. Hull, 16 Vt. 309; Shaw v. Hearsey, 5 Mass. 520; Wright v. Saddler, 20 N. Y. (6 Smith) 320, 324; Torrey v. Torrey, 14 N. Y. (4 Kern.) 430; Den d. Hardenburgh v. Hardenburgh, 5 Halst. (N. J.) 42; Fairchild v. Chastelleux, 1 Penn. St. 176; Den v. Branson, 5 Ired. 426; Den v. Whitemore, 2 Dev. & Bat. 537; Rogers v. Grider, 1 Dana, 242; Babbet v. Scroggin, 1 Duvall, 272; Taul v. Campbell, 7 Yerg. 319, 338; Ames v. Norman, 4 Sneed, 683; Ketchum v. Walsworth, 5 Wis. 95; Gibson v. Zimmerman, 12 Mo. 385. A different rule prevails in Connecticut. Whittlesey v. Fuller, 11 Conn. 337, 341 possession, depend many other consequences and incidents to the joint-tenant's Properties of a estate. If two joint-tenants make a verbal lease of their land, joint-tenancy. reserving rent to be paid to one of them, it shall enure to both, in respect of the joint reversion (t). If their lessee surrenders his lease to one of them, it shall also enure to both, because of the privity, or relation of their estate (u). For the same reason, formerly, livery of seisin, made to one jointtenant, enured to both of them (x): and the entry, or re-entry, of one jointtenant was as effectual in law as if it were the act of both (y). (309) But this has been modified by statute, for now "when one or more of several persons * entitled to any land or rent as coparceners, joint-tenants, or tenants [* 349] in common, shall have been in possession or receipt of the entirety, or more than his or their undivided share or shares of such land, or of the profits thereof, or of such rent for his or their own benefit," such possession or receipt shall not be deemed to be the possession of the true owner of the other share of the same land or rent (z). In all actions also relating to their joint estate, one joint-tenant cannot sue or be sued without joining the other (a). But if two or more joint-tenants be seised 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 seised 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 (b). Upon the same ground it is held, that one joint-tenant cannot have an action against another for trespass, in respect of his land (c); 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, unless it be such an act as severs the joint-tenancy: thus he may not grant copyholds (d): and if any waste be done, which tends to the destruction of the inheritance, one jointtenant might have an action of waste against the other, by construction of the statute Westm. 2, *c. 22 (e). (310) A joint-tenant may make a valid lease of his share, a dealing of this kind being a severance pro [* 350] (309) So if an adverse title to the joint estate, or if an older legal title to it, is purchased by one of the joint-tenants, the benefit of such purchase will enure to his co-tenants, provided they contribute ratably toward paying the expenses of the purchase. Brown v. Hogle, 30 Ill. 119; Brittin v. Handy, 20 Ark. 381; Gossam v. Donaldson 18 B. Monr. 230; Picob v. Paige, 26 Mo. 398; Page v. Webster, 8 Mich. 263; Lloyd v Lynch, 28 Penn. St. 419; Van Horne v. Fonda, 5 Johns. Ch. 407; Vanable v. Beauchamp, 3 Dana, 321; Rothwell v Deries, 2 Black. 613. (310) It may be stated as a general rule, that those of the States of the Union which recognize estates in joint-tenancy will also recognize and enforce an appropriate action in tanto (f). Though, it seems, that if a rent be reserved on the lease, it ceases with the life of the grantor (g). 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 (h), 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. (311) Though this action is rarely resorted to now, the usual remedy being by suit in equity for an account and partition (i). From the same principle also arises the remaining incident of joint estates. the most important of all, viz., the doctrine of survivorship: by which, when two or more persons are seised of a joint estate of inheritance, Survivorship. for their own lives, or pur 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 (k). This is the natural and 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 (f) Co. Litt. 185 a; 2 Roll. Ab. 89; Cro. Jac. 52. (g) Co. Litt. 185 a; Dyer, 187. A lease by a joint-tenant for years is a complete severance of the joint-tenancy. Co. Litt. 192 a. (h) Co. Litt. 200. (i) Com. Dig. Chanc. 3 V. 6, & 4 E.; Mitford's Pleading, 109. See Macmahon v. Burchell, 2 Ph. 127, as to the present law. (k) Litt. s. 280, 282. case one joint-tenant wrongfully injures the common property. See 4 Kent's Com. 359. note c; 1 Washb. Real Prop. 411 (557); id. 433 (591), note. Such co-tenant is not liable as a wrong-doer for merely exercising the usual acts of ownership over the property. But, if he wrongfully injures, destroys or converts the property to his own use, he will be liable to an action at the suit of his co-tenant. Chesley v. Thompson, 3 N. H. 9; Odiorne v. Lyford, id. 502; Pillsbury v. Moore, 44 Me. 154; Hutchinson v. Chase, 39 id. 508. So, if he wrongfully excludes his co-tenant from any use of the common property, or sells it as his exclusive property. Newton v. Newton, 17 Pick. 201; Tinney v. Stebbins, 28 Barb. 290; Dyckman v. Valiente, 42 N. Y. (3 Hand) 549, 561. (311) In several of the States joint-tenants and tenants in common may maintain an action against their co-tenants if they have received more than a due share of the rents and profits of the common estate. Shepard v. Richards, 2 Gray, 424, 426; Gowen v. Shaw, 40 Me. 56; Moses v. Ross, 41 id. 360; Blanton v. Vanzant, 2 Swan. (Tenn.) 276; Shiels v. Stark, 14 Ga. 429; Huff v. McDonald, 22 id. 131; Izard v. Bodine, 11 N. J. Ch. (3 Stockt.) 403. But to charge a co-tenant for such rents, he must either have been made the bailiff of the other tenant, which would render him liable at common law, or he must have received more than his share of the rents and profits of the common property, in which case he would be liable under the statute cited in the text, 4 Anne, ch. 16. Id. The tenant who merely occupies the common property does nothing more than he has a right to do on his own account; and to render him liable to a co-tenant for rent, or for use and occupation, there must be something more than an occupancy by him and a forbearance to occupy by his co-tenant. Woolever v. Knapp, 18 Barb. 265; Dresser v. Dresser, 40 id. 300: Wilcox v. Wilcox, 48 id. 327; Crane v. Waggoner, 27 Ind. 52; Sargent v. Parsons, 12 Mass. 149; Keisel v. Earnest, 21 Penn. St. 90; Shiels v. Stark, 14 Ga. 429; Lyles v. Lyles, 1 Hill's Ch. (S. C.) 85. [*351] 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 original 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, and that free from any claim of dower or of curtesy on account of the interest that was in the deceased joint-tenant (7). The right of survivorship is called by our ancient authors (m) 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." The right of survivorship, since it operates sometimes with considerable hardship upon the representatives of him who dies first, is not looked. upon with great favour, although it is too well established to be disregarded in any but exceptional cases. But where it has been found practicable this has been done. (312) Thus courts of equity have held that if two persons lend money jointly upon a mortgage, although the land be conveyed to them as joint-tenants and the contract be with them jointly, yet the representatives of him who dies first are entitled to the money * equally with the survivor. Again, if land be purchased by several persons who pay for it in unequal shares, in equity they will be held not to be joint-tenants, whatever the form of the conveyance. This is not the case, however, when the price is paid in equal shares, it being then considered that they all take an equal chance, which could not be in the former case. [*352] We are, lastly, to inquire how an estate in joint-tenancy may be severed and destroyed. And this may be done by destroying its constituent unities. That Joint-tenancy, destroyed. Partition. of time, indeed, which respects only the original commencement how severed or of the joint estate, cannot (being now past) be affected by any subsequent transactions. But the joint-tenants' estate may be destroyed, without any alienation, by merely disuniting their possession. For joint-tenants being seised per my et per tout, everything that tends to narrow that interest, so that they shall not be seised throughout the whole and throughout every part, is a severance or destruction of the jointure. (1) Co. Litt. 30 a; 183 a. (m) Bracton, 1. 4, tr. 3, c. 9, s. 3; Fleta, 1.3, c. 4. (312) The nature of American institutions and the general policy of our law is opposed to the principles of survivorship; and in many of the States statutes have been enacted which either abolished the rule, or changed joint-tenancies into tenancies in common, except in the case of conveyances in trust, or by way of mortgage, or to husband and wife. A reference to many of the statutes of the several States will be found in 1 Washb. Real Prop. 408 to 410, note. See, also, 4 Kent's Com. 362. * And therefore, if two joint-tenants agree to part their lands, and hold them in severalty, and carry their intentions into effect by a deed, 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 (n). 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 (0): 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 (p). Afterwards the legislature enabled [* 353] joint-tenants to compel a partition under a writ framed for the purpose (q), which, however, proving inconvenient and dilatory, although the proceeding was improved by later enactments, fell into disuse (r). Ultimately the writ was abolished (s), and a partition has ever since been effected by a suit in chancery, whenever the joint-owners, either through unwillingness or personal disability, cannot obtain that end by voluntary action. (313) The court issues a commission to make partition of the property, first, however, usually giving the parties liberty to make proposals. The difficulty of making a satisfactory division has never been a reason for refusing to exercise the jurisdiction, for in one case the commissioners made a partition of a house by assigning all the chimneys and fireplaces, the only staircase, and the conveniences in the yard, to one of the parties (t). The inconveniences now order a sale. attending a partition of this kind have led to the legislature giving power to the court to order a sale instead of partition where such a course is proper (u). This applies not only to partition between joint-tenants, but to all cases of partition. Thirdly, the jointure may be Alienation. destroyed by destroying the unity of title. As if one jointtenant alienes and conveys his estate to a third person: here the joint-tenancy is severed, and turned into tenancy in common, 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 effect till after the death of the testator, The court may (n) Co. Litt. 169 a; 187, 188. (0) Litt. s. 290. (p) Thus, by the civil law, nemo invitus compellitur ad communionem. Dig. lib. 12, 6, 26, s. 4. And again; si non omnes qui rem communem habent, sed certi ex his, dividere desiderant; hoc judicium inter eos accipi potest. Dig. lib. 10, 3, 8. (q) 31 Hen. 8, c. 1, & 32 Hen. 8, c. 32. (r) 8 & 9 Will. 3, c. 31, made perpetual by 3 & 4 Anne, c. 18. (8) 3 & 4 Will. 4, c. 27, s. 36. (t) Turner v. Morgan, 8 Ves. 143. See Hanbury v. Hussey, 14 Beav. 152, where a partition was made of a manor. (u) 31 & 32 Vict. c. 40. (313) In most, if not in all of the States there are statutes relating to the partition of lands, and regulating the mode in which it is to be done. The subject has been fully and carefully considered in 1 Washb. Real Prop. 426 to 441, notes. See, also, 4 Kent's Com. 364 to 366. It is an established rule, that either by the aid of a court of equity, or by an application to a court of law, there is a means of compelling a partition in a proper case; for it is a recognized and settled principle of American law that, in some form or by some mode, a partition may be demanded as a right, and as an incident to an ownership in joint tenancy, or tenancy in common. Mitchell v. Starbuck, 10 Mass. 5; Potter v. Wheeler, 13 id. 504; Ledbetter v. Gash, 8 Ired. 462; Witherspoon v. Dunlap, Harper, 390; Holmes v. Holmes, 2 Jones' Eq. 334; Higginbotham v. Short, 25 Miss. 160. |