C. JOINT OWNERSHIP.

CHAPTER I.

JOINT TENANCY.

DIGBY, HIST. REAL PROP., Chap. V., § 4. Another class of rights which attained greater precision during the interval under consideration [from the end of the reign of Edward I. to the end of the reign of Henry VIII.] and assumed the characteristics which they have possessed ever since, are those which are enjoyed by two or more persons who are simultaneously entitled to rights of property over the same piece of land. From the earliest times it must have been common for two or more persons to have undivided interests of some kind in land. By the time of Littleton three kinds of undivided ownership had come to be distinguished as having different attributes. The persons entitled are called joint-tenants, tenants in common, coparceners. The main characteristics of this class of rights will sufficiently appear from the subjoined extracts. The point of resemblance between the three kinds is that the co-owners have no separate estate or interest in any distinct portion of the land over which they have simultaneously rights of property, they are each interested, according to the extent of their share, in every part of the whole land and its proceeds.

LIT., § 277. Joyntenants are as if a man bee seised of certaine lands or tenements, &c., and infeoffeth two, three, foure, or more, to have and to hold to them for terme of their lives, or for terme of another's life, by force of which feoffement or lease they are seised; these are joyntenants.

A

§ 278. Also, if two or three, &c., disseise another of any lands or tenements to their own use, then the disseisors are joyntenants. But if they disseise another to the use of one of them, then they are not joyntenants; but hee to whose use the disseisin is made is sole tenant, and the others have nothing in the tenancy, but are called coadjutors to the disseisin, &c.

§ 280. And it is to be understood, that the nature of joyntenancy is, that hee which surviveth shall have only the entire tenancie, according to such estate as hee hath, if the joynture be continued, &c. As if three joyntenants bee in fee-simple, and the one hath issue and dyeth, yet they which survive shall have the whole tenements, and the issue shall have nothing. And if the second joyntenant hath issue and dye, yet the third which surviveth shall have the whole tenements to him and to his heires for ever. But otherwise it is of parceners; for if three parceners be, and before any partition made the one hath issue and dyeth, that which to him belongeth shall descend to his issue. And if such parcener die without issue, that which belongs to her shall descend to her co-heires, so as they shall have this by descent, and not by survivor as joyntenants shall have, &c.

§ 281. And as the survivour holds place betweene joyntenants, in the same manner it holdeth place betweene them which have joynt estate or possession with another of a chattell, reall or personall. As if a lease of lands or tenements bee made to many for terme of yeares, hee, which survives of the lessees, shall have the tenements to him only during the terme by force of the same lease. And if a horse or any other chattell personall be given to many, hee which surviveth shall have the horse onely.2

§ 282. In the same manner it is of debts and duties,

1 This is the essential characteristic of joint-tenancy, distinguishing it

both from coparcenary and from tenancy in common.-Digby.

? There is and has always been an exception in the case of property jointly owned for purposes of trade: the maxim being, "Jus accrescendi inter mercatores locum non habet."-Digby.

&c., for if an obligation be made to many for one debt, hee which surviveth shall have the whole debt or dutie. And so is it of other covenants and contracts, &c.

§ 283. Also, there may be some joyntenants which may have a joint estate, and be jointenants for terme of their lives, and yet have severall inheritances. As if lands be given to two men and to the heires of their two bodies begotten, in this case the donees have a joint estate for term of their two lives, and yet they have severall inheritances; for if one of the donees hath issue and dye, the other which surviveth shall have the whole by the survivor for terme of his life, and if he which surviveth hath also issue and die, then the issue of the one shall have the one moitie and the issue of the other shall have the other moity of the land, and they shal hold the land betweene them in common, and they are not joyntenants, but are tenants in

§ 285. Also, if lands be given to two and to the heires of one of them, this is a good joynture, and the one hath a freehold, and the other a fee-simple. And if he which hath the fee dieth, he which hath the freehold shall have the entiertie by survivor for terme of his life. In the same manner it is, where tenements bee given to two and the heirs of the body of one of them engendred, the one hath a freehold, and the other a fee-taile, &c.

§ 287. Also if there be two joyntenants of land in feesimple within a borough where lands and tenements are devisable by testament, and if the one of the said two joyntenants deviseth that which to him belongeth by his testament, &c., and dieth, this devise is voide. And the cause is, for that no devise can take effect till after the death of the devisor, and by his death all the land presently commeth by the law to his companion which surviveth, by the survivor, the which hee doth not claim, nor hath anything in the land by the devisor, but in his own right by the survivor according to the course of law, &c., and for this cause such devise is void. But otherwise it is of parceners seised of

tenements devisable in like case of devise, &c. causa qua supra.

§ 288. Also it is commonly said that every jointenant is seised of the land which hee holdeth joyntly per my et per tout; and this is as much to say, as he is seised by every parcell and by the whole, &c., and this is true, for in every parcell and by every parcell and by al the lands and tenements he is joyntly seised with his companion.

§ 290. Also, joyntenants (if they will) may make partition betweene them, and the partition is good enough; but they shall not bee compelled to doe this by the law; but if they will make partition of their own will and agreement, the partition shal stand in force.

CO. LIT., 187, a. This is true regularly; but by the custome of some cities and boroughs, one joyntenant or tenant in common may compell his companion, by writ of partition grounded upon the custome, to make partition. But since Littleton wrote joyntenants and tenants in common generally are compellable to make partition by writ framed upon the statutes of 31 & 32 H. 8. And albeit they be now compellable to make partition, yet, seeing they are compellable by writ, they must pursue the statutes and cannot make partition by parol, for that remaines at the common law.

LIT., § 291. Also, if a joynt 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 a moity, and the third person shall have as much as the husband and wife, viz., the other moity, &c. And the cause is, for that the husband and wife are but one person in law, and are in like case as if an estate be made to two joyntenants, when the one hath by force of the joynture the one moity in law, and the other the other moity, &c. In the same manner it is where an estate is made to the husband and wife and to two other men, in this case the husband and wife have but the third part, and the other two men the other two parts, &c. causa qua supra.

2 BL. COM., 179-182. The properties of a joint-estate are derived from its unity, which is fourfold: the unity of interest, the unity of title, the unity of time and the unity of possession; or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance,. commencing at one and the same time, and held by one and. the same undivided possession.

:

One

First, they must have one and the same interest. joint-tenant cannot be entitled to one period of duration or quantity of interest in lands, and the other to a different; one cannot be tenant for life, and the other for years; one cannot be tenant in fee, and the other in tail. But if land be limited to A. and B. for their lives, this makes them joint-tenants of the freehold; if to A. and B. and their heirs, it makes them joint-tenants of the inheritance. If land begranted to A. and B. for their lives, and to the heirs of A.; here A. and B. are joint-tenants of the freehold during their respective lives, and A. has the remainder of the fee in severalty or if land be given to A. and B. and the heirs of the body of A.; here both have a joint-estate for life, and A. hath a several remainder in tail. Secondly, joint-tenants must also have a unity of title; their estate must be created by one and the same act, whether legal or illegal; as by one and the same grant, or by one and the same disseisin. Joint-tenancy cannot arise by descent or act of law; but merely by purchase or acquisition by the act of the party; and, unless that act be one and the same, the two tenants would have different titles; and if they had different titles, one might prove good and the other bad, which would absolutely destroy the jointure. Thirdly, there must also be a unity of time; their estates must be vested at one and the same period, as well as by one and the same title. As in case of a present estate made to A. and B.; or a remainder in fee to A. and B. after a particular estate; in either case A. and B. are joint-tenants of this present estate, or this vested remainder. But if, after a lease for life, the remainder be limited to the heirs of A. and B.; and during the continuance of the particular estate