of either joint tenant by a "severance" of the tenancy, as hereafter explained.11

Since the right of survivorship is a necessary incident, there cannot be a joint tenancy between a corporation and another, since a corporation is perpetual.12

Termination.

A joint tenancy may be terminated by the destruction of one of its unities, since they are all necessary to its existence.13 This is frequently termed a "severance" of the joint tenancy.

The unity of title is destroyed by a conveyance by a joint tenant of his interest. If one of two joint tenants thus disposes of his interest, the other joint tenant and the grantee become tenants in common, while, if one of three or more joint tenants conveys his interest to a third person, the latter then becomes a tenant in common, instead of a joint tenant, with the others, though such others remain joint tenants as between themselves.14 A contract by one joint tenant to convey his share has the same effect as a conveyance in destroying the tenancy.16

A lease for years by one joint tenant is a valid severance of the tenancy so long as it continues, and consequently takes precedence of the right of survivorship in another joint tenant;1o and a mortgage likewise has been held to create a severance.1

11 See post, note 17.

12 Freeman, Cotenancy, § 15; De Witt v. City of San Francisco, 2 Cal. 289; Telfair v. Howe, 3 Rich, Eq. (S. C.) 235, 55 Am. Dec. 637. 18 2 Bl. Comm. 185.

14 Litt. §§ 292, 294; 2 Bl. Comm. 186; 4 Kent, Comm. 363; Robison v. Codman, 1 Sumn. 121, Fed. Cas. No. 11,970; Davidson v. Heydom, 2 Yeates (Pa.) 459.

15 In re Wilford's Estate, 11 Ch. Div. 267; Burnaby v. Equitable Re versionary Interest Soc., 28 Ch. Div. 416.

16 Co. Litt. 185a; Clerk v. Clerk, 2 Vern. 323.

17 York v. Stone, 1 Salk. 158; Simpson's Lessee v. Ammons, 1 Bin. (Pa.) 175, % Am. Dec. 425; 1 Washburn, Real Prop. 4.12. In Wilkins ▼. Young, 144 Ind. 2, 55 Am. St. Rep. 162, it was decided that a mort

If one of three or more joint tenants release his interest to one of the others, the latter becomes a tenant in common with the third cotenant as to that interest, since there is no longer unity of title, though still a joint tenant as to that which he first held.18

A joint tenancy may also be terminated by the destruction of the unity of interest, as when one of two or more joint tenants for life purchases the inheritance or obtains it by descent, his life interest being thus merged in the fee;19 and it may be terminated by the destruction of the unity of possession,-that is, by a partition of the property among the cotenants, to hold each a part in severalty.20

Joint tenancy regarded with disfavor.

The common law favored joint tenancy, as against other classes of concurrent ownership, because the policy of that law was adverse to the division of tenures, and the consequent multiplication of feudal services and the weakening of the feudal relation, and in the case of joint tenancy this did not occur to any considerable extent, since the joint tenants were one person so far as the feudal lord was concerned.21 With the practical abolition of tenures, however, the reason for such policy ceased, and thereafter courts of equity, regarding the right of survivorship as productive of injustice, in making no provision for pos terity, showed a disposition to lay hold of any indication of intent in order to construe an instrument as creating a tenancy

gage by one joint tenant of his share takes precedence of the right of survivorship in the other cotenant. Since, however, in that state, a mortgage is regarded as a lien only, it is perhaps difficult to understand how it can effect a severance and thus destroy the right of sur vivorship.

18 Litt. § 304; 2 Bl. Comm. 186; 1 Washburn, Real Prop. 411.

19 Co. Litt. 182b; Wiscot's Case, 2 Coke, 60; 2 Bl. Comm. 186; 2 Cruise, Dig. tit. 18, c. 2, §§ 2-7.

20 See post, §§ 174, 175.

211 Bl. Comm. 193; 4 Kent, Comm. 361; Fisher v. Wigg, 1 Salk. 391; Martin v. Smith, 5 Bin. (Pa.) 16, 6 Am. Dec. 395; Caines v. Grant's Lessee, 5 Bin. (Pa.) 120.

in common, and not a joint tenancy.22 The same position has been taken by the courts in this country.23 In spite, however, of the prejudice on the part of the courts against joint tenancies, in the absence of any statutory provision on the subject existing at the date of the instrument in question, a conveyance or devise to two or more will create a joint tenancy if there are no words indicating an intention that they shall take sepa rate interests.24

In pursuance of the same policy as that of the courts in hos tility to joint tenancy, it has been provided by statute in many states that a conveyance or devise to two or more persons shall create a tenancy in common, and not a joint tenancy, unless a contrary intent is plainly apparent, or, in some states, is expressly declared.25 In some states, the legislature has entirely abolished joint tenancy, making what would have been a joint tenancy at common law a tenancy in common. In stil!

26

22 2 Bl. Comm. 180, Chitty's note; 4 Kent, Comm. 361; 2 Cruise, Dig. tit. 28, c. 1, §§ 33-37; 2 Jarman, Wills, 1123; Lake v. Craddock, 3 P. Wms. 158; Jolliffe v. East, 3 Brown Ch. 25; Rigden v. Vallier, 2 Ves. Sr. 258.

23 Noble v. Teeple, 58 Kan. 398; Telfair v. Howe, 3 Rich. Eq. (S. C.) 235, 55 Am. Dec. 637; Westcott v. Cady, 5 Johns. Ch. (N. Y.) 334, 9 Am. Dec. 306; Caines v. Grant's Lessee, 5 Bin. (Pa.) 120; Barclay v. Hendrick's Heirs, 3 Dana (Ky.) 378.

24 Greer v. Blanchar, 40 Cal. 194; Seitz v. Seitz, 11 App. D. C. 358; Campbell v. Herron, 1 Conf. R. (N. C.) 291, Finch's Cas. 947; Barclay v. Hendrick's Heirs, 3 Dana (Ky.) 378; Young v. De Bruhl, 11 Rich. Law (S. C.) 638; Lockhart v. Vandyke, 97 Va. 356; Martin v. Smith, 5 Bin. (Pa.) 16; Noble v. Teeple, 58 Kan. 398. And see Powell v Powell, 5 Bush (Ky.) 619.

25 4 Kent, Comm. 361; 3 Sharswood & B. Lead. Cas. Real Prop. 21; 1 Stimson's Am. St. Law, 1371(B); Freeman, Cotenancy, § 35. A con veyance to two persons "jointly" has been held to show an intention to create a joint tenancy within the statute. Case v. Owen, 139 Ind. 22, 47 Am. St. Rep. 253. And, likewise, a devise to several persons and the survivor or survivors of them. Apgar v. Christophers, 33 Fed. 201.

26 1 Stimson's Am. St. Law, § 1371(A); 3 Sharswood & B. Lead. Cas Real Prop. 20.

other states, the doctrine of survivorship has been abolished by statute;27 a character of provision which does not, however, abolish joint tenancy.28

In some states, the statutes abolishing joint tenancies, or restricting the cases in which such tenancy may arise, have been held not to apply in the case of conveyances or gifts to two or more trustees, since it is desirable that they hold as joint tenants, rather than as tenants in common, so that a division of the ·legal title upon the death of one may be avoided,29 and a provision to this effect is frequently contained in the statute.30

163. Tenancy in common.

81

A tenant in common, though owner of an undivided share only in the land, has a several and distinct estate therein, and, except for the fact that he has not the exclusive possession, he has the same rights in respect to his share as a tenant in severalty. So distinct are the interests of tenants in common that, if they join in a lease, it is regarded as the distinct lease of each, and a conveyance by one tenant to another must be made as if to a stranger, a deed of release being insufficient to convey his title.82 It is immaterial whether the cotenants obtain their titles simultaneously, or from the same person, as it

27 3 Sharswood & B. Lead. Cas. Real Prop. 15; Freeman, Cotenancy, § 35; 1 Dembitz, Land Titles, § 27, p. 197.

18 Vass v. Freeman, 56 N. C. 227; Rowland v. Rowland, 93 N. C. 214; Lockhart v. Vandyke, 97 Va. 356. Nor does such a statute prevent an express limitation over to the survivor of two grantees or devisees. Arnold v. Jack's Ex'rs, 24 Pa. St. 57.

29 Parsons v. Boyd, 20 Ala. 112; Webster v. Vandeventer, 6 Gray (Mass.) 428.

30 1 Stimson's Am. St. Law, § 1371(B) (3); 3 Sharswood & B. Lead. Cas. Real Prop. 26.

814 Kent, Comm. 368; Challis, Real Prop. 297; 1 Washburn, Real Prop. 416.

82 Freeman, Cotenancy, § 189; 4 Kent, Comm. 368, 369; 1 Washburn, Real Prop. 416, 417; Rector v. Waugh, 17 Mo. 28. 57 Am. Dec. 251; Spencer v. Austin, 38 Vt. 258, Finch's Cas. 944.

is whether they have each the same quantum of estate; this class of tenancy differing in this respect from a joint tenancy. Accordingly, one tenant in common may have an estate in fee and another for life, and one may have acquired his title from one person by conveyance, and the other from another person by lescent, and the title of one may have vested yesterday, and hat of the other fifty years ago."

Creation.

A tenancy in common will, as a result of the distinct character of the titles of the several tenants, arise whenever the terms of the instrument under which the property is held show an intent that each tenant shall hold his interest as a separate moiety. So, a tenancy in common has been held to be created by an instrument looking towards a division of the estate, or provid ing that the land shall be held by two or more persons "equally," or "share and share" alike.34 The terms of the instrument are, however, of comparatively little importance at the present day, owing to the frequent adoption of statutes providing that a conveyance or devise to two or more shall be presumed to create a tenancy in common.35

When the owner of a tract of land conveys a part thereof, without designating or attempting to designate the part so conveyed, the grantor and grantee will become tenants in common of the whole tract, in proportion to the respective quantities of each.36

83 2 Bl. Comm. 191; 2 Cruise, Dig. tit. 20, § 2; Freeman, Cotenancy, § 86; Spencer v. Austin, 38 Vt. 258, Finch's Cas. 944.

34 2 Bl. Comm. 193, Christian's note; 4 Cruise, Dig. tit. 32, c. 21, §§ 50-58; 2 Jarman, Wills, 1121; Fisher v. Wigg, 1 P. Wms. 14; Rigden v. Vallier, 2 Ves. Sr. 257; Griswold v. Johnson, 5 Conn. 363; Gilpin v. Hollingsworth, 3 Md. 190, 56 Am. Dec. 737; Pruden v. Paxton. 79 N. C. 446, 28 Am. Rep. 333; Weir v. Tate, 39 N. C. 264; Westcott v. Cady, 5 Johns. Ch. (N. Y.) 334, 9 Am. Dec. 306; Evans v. Brittain, 3 Serg. & R. (Pa.) 135; Martin v. Smith, 5 Bin. (Pa.) 16.

85 See ante, § 162.

36 Freeman, Cotenancy, 96; Gibbs v. Swift, 12 Cush. (Mass.) 393;