LECTURE LXIV.

OF A JOINT INTEREST IN ESTATES.

A JOINT interest may be had either in the title or possession of land. Two or more persons may have an interest in connexion in the title to the same land, either as joint tenants or coparceners, or in the possession of the same as tenants in common.

I. Joint tenants are persons who own lands by a joint title, created expressly by one and the same deed or will. They hold uniformly by purchase. It is laid down in the text books as a general proposition, that the estate holden in joint tenancy must be of the same duration or nature, and quantity of interest, whether the estates of the several joint tenants be in fee, or in tail, or for life, or for years. But the proposition must be taken with some explanations. Two persons may have a joint estate for life, with remainder to one of them in fee, and if he who hath the fee first dies, the survivor takes the whole estate for his life. So, they may have an estate in joint tenancy for their lives, with several inheritances. Lord Cokee said, that an estate

of freehold, and an estate *for years, could not *358 stand in jointure; but he admitted that there might be two joint tenants, the one for life, and the other

in fee. It is an acknowledged principle, that where the fee is limited, by one and the same conveyance, to two persons, and to the heirs of one them, it is a good jointure. They are, in such a case, joint tenants of a life estate, with a remainder in fee to one of them. It is another general rule, that the estates of the joint tenants must be created at one and the same time, as well as by one and the same title. But this rule has its exceptions, and it does not apply to the learning of uses and executory devises. If a person makes a feoffment in fee to the use of himself for life, and of such wife as he should afterwards marry for their joint lives, he, and the wife whom he should afterwards marry, are joint tenants, though they come to their estates at several times. The estate of the wife is in abeyance until the marriage, and then it has relation back, and takes effect from the original time of creation. So, if there be a devise, or limitation, to the use of the children of A., the estate may vest in joint tenancy in one, and afterwards in other children, as they progressively are born.d

Wiscot's case, 2 Co. 60. Litt. sec. 285.

⚫ 2 Blacks. Com. 181. Woodgate v. Unwin, 4 Simons, 129. • Co. Litt. 188, a. 1 Co. 101. 2 Blacks. Com. 182.

• Preston on Abstracts, vol. ii. 67. Mr. Hargrave, in note 13 to Co. Litt. 188, a, intimates, that the creation of an estate in joint tenancy, in several tenants, to commence at different times, can only be in cases of limitations by way of use, in which the estate is vested in the feoffee, till the future use comes in esse. But the uses may be raised by common law conveyances, as fine or feoffment, and the limitation may be declared by devise, though it be not by way of use. The distinction was taken in Samme's case, (13 Co. 54,) between a conveyance at common law, and one to uses; and it was said, that joint tenants must be seised to a use when they come to the estate at several times. See, also, Aylor v. Chep, Cro. J. 259. Sussex v. Temple, 1 Lord Raym. 310. Oates v. Jackson, Str. 1172. Stratton v. Best, 2 Bro. 233. Lord Thurlow, in the last case, would seem to have discarded this very technical distinction; for he declared, that whether the settlement before him was to be considered as the conveyance of a legal estate, or a deed to uses, made no difference, and the estate would be a joint tenancy, though vested at different times.

*From this thorough and intimate connexion between joint tenants, results the principle, that the beneficial acts of one of them respecting the estate, will enure equally to the advantage of all. One joint tenant may distrain for rent, and appoint a bailiff for that purpose, unless the other expressly dissents. Each of them may enter upon the land, and exercise at his pleasure every reasonable act of ownership; yet one joint tenant is liable to his companion for any waste committed upon the estate, and they are severally accountable to each other for the rents and profits of the joint estate. Under these regulations, joint tenants are regarded as having one entire and connected right; and they must join, and be joined, in all actions respecting the estate."

Joint tenants are said to be seised per my et per tout, and each has the entire possession, as well of every parcel as of the whole. They have each (if there be two of them for instance) an undivided moiety of the whole. A joint tenant, in respect to his companion, is

2 Blacks. Com. 182.

Robinson v. Hoffman, 4 Bingham's Rep. 562.

• The statutes of Westm. 2, c. 22, and 4 Anne, c. 16, on this subject, have, doubtless, been adopted in this country, wherever the English doctrine of joint tenancy exists. Tucker's Blackstone, vol. ii. 184, note. Laws of NewYork, sess. 10, c. 6, sess. 11, c. 4. Revised Statutes of Missouri, 1835, p. 37. Lomax's Digest of the Laws concerning Real Property in United States, vol. i. 481. Revised Statutes of New-Jersey, 1847, p. 46. The New-York Revised Statutes, vol. i. 750, sec. 9, have given not only an action of account, according to the statute of 4 Anne, but an action for money had and received, as between joint tenants and tenants in common. So, in Massachusetts, assumpsit, as well as account, will lie, if one joint tenant, or tenant in common, receives more than his share of the profits. Brigham v. Eveleth, 9 Mass. Rep. 538. Miller v. Miller, 7 Pick. Rep. 133. In McMurray v. Rawson, 3 Hill, 59, an action of account was brought as between partners in trade, but it was regarded as an obsolete action, difficult and dilatory, and so many impediments lay in its way, that the experiment of reviving this action will probably never again be made. Baron Alderson, in 13 Meeson & W. 20, said that the action of account was so inconvenient that it has long been discontinued and a court of equity preferred.

seised of the whole; but for the purposes of aliena*360 tion, and to forfeit, and to lose by default in a præcipe, he is seised only of his undivided part or proportion.

It

The doctrine of survivorship, or jus accrescendi, is the distinguishing incident of title by joint tenancy; and, therefore, at common law, the entire tenaney or estate, upon the death of any of the joint tenants, went to the survivors, and so on to the last survivor, who took an estate of inheritance. The whole estate or interest held in joint tenancy, whether it was an estate in fee, or for life, or for years, or was a personal chattel, passed to the last survivor, and vested in him absolutely. passed to him free, and exempt from all charges made by the deceased co-tenant. The consequence of this doctrine is, that joint tenant cannot devise his interest in the land; for the devise does not take effect until after the death of the devisor; and the claim of the surviving tenant arises in the same instant with that of the devisee, and is preferred. If a joint tenant makes a will, and he then becomes solely seised by survivorship, the will does not operate upon the title so acquired without the solemnity of republication. The same instantaneous transit of the estate to the survivor, bars all claim of dower on behalf of the widow of the

⚫ Co. Litt. 186, a. According to Mr. Ram, in his Outlines of Tenure and Tenancy, 149, 150, 151, the only reasonable explanation of the common phrase that a joint tenant is seised per my et per tout, or by the moiety or half, and by all, is that given in the text; and he says it is the only way in which it ought to be understood. Mr. Preston says to the same effect, that joint tenants have the whole for the purpose of tenure and survivorship, while each has only a particular part for the purpose of alienation. Preston on Estates, vol. i. 136.

b Litt. sec. 280, 281. 286. Co. Litt. ibid. • Co. Litt. 185, b. 1 Blacks. Rep. 476. Swift v. Roberts, 3 Burr. Rep. 1488.

deceased joint tenant. But the charges made by a joint tenant, and judgments against him, will *361 bind his assignee, and him as survivor.b

The common law favoured title by joint tenancy, by reason of this very right of survivorship. Its policy was averse to the division of tenures, because it tended to multiply the feudal services, and weaken the efficacy of that connexion." But in Hawes v. Hawes,d Lord Hardwicke observed, that the reason of that policy had ceased with the abolition of tenures; and he thought, that even the courts of law were no longer inclined to favour them; and at any rate, they were not favoured in equity, for they were a kind of estates that made no provision for posterity. As an instance of the equity view of the subject, we find that the rule of survivorship is not applied to the case of money loaned by two or more creditors on a joint mortgage. The right of survivorship is also rejected in all cases of partnerships, for it would operate very unjustly in such cases. In this country, the title by joint tenancy is very much reduced in extent, and the incident of survivorship, is still more extensively destroyed, except where it is proper and necessary, as in the case of titles held by trustees.

e

In New-York, as early as 1786, estates in joint tenancy were abolished, except in executors, and other trustees, unless the estate was expressly declared, in the deed or will creating it, to pass in joint tenancy. The New-York Revised Statutes have re-enacted the provision, and with

■ See supra, p. 38. In Ohio, it is held, that the jus accrescendi does not exist, to the exclusion of the right of dower in the widow of the joint tenant first dying, and the law is the same in Virginia. 1 Revised Code, c. 98. b Preston on Abstracts, vol. ii. 65.

Holt, Ch. J., in Fisher v. Wigg, 1 Salk. Rep. 391.

1 Wils. Rep. 165.

• Lord Hardwicke, in Rigden v. Vallier, 2 Ves. 258. 3 Atk. Rep. 731. Randall v. Phillips, 3 Mason's Rep. 378.

'Lake v. Craddock, 3 P. Wms. 158. Vol. i. 727, sec. 41.