Cro. Eliz. 470.

grantor. 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, and by such death the right of the survivor, (which accrued at the original creation of the estate, and has, Co. Litt. 185. therefore, a priority to the other) is already vested. It may Litt. s. 287. be destroyed by destroying the unity of interest. And, therefore, if there be two joint-tenants for life, and the inheritance is purchased by or descends upon either, it is a severance of the jointure. In short, when, by any act or event, different interests are created in the several parts of the estate, or they are held by different titles, or if merely the possession is separated; so that the tenants have no longer these four indispensable properties, a sameness of interest, and undivided possession, a title vesting at one and the same time, and by one and the same act or grant, the jointure is instantly dissolved. And whenever, or by whatever means the jointure ceases or is severed, the right of survivorship or jus accrescendi the same instant ceases with it.

Nihil de re

accrescit ei qui

quando jus achabet. Co. Litt. 188 (c).

cresceret

The consequences of dissolving the joint estate.

Sometimes it is disadvantageous to dissolve the joint estate; as if there be two joint-tenants for life and they make partition, this dissolves the jointure; and they then have an estate in a moiety only for their own lives merely; and on the death of either, the reversioner shall enter on his moiety. And therefore, if there be two joint-tenants for life, and one grants away his part for the life of his companion, this is a forfeiture; for by the severance of the jointure he acquires in his own moiety, only an estate for his own life; and then he grants the same land for the life of another, which grant is a forfeiture of his 4 Leon. 237. estate; for it is creating an estate which may, by possibility, Litt.s.241,242. last longer than that which he is legally entitled to.

An estate held in coparcenary is where lands of inheritance of estates in descend from the ancestor to two or more persons. It arises coparcenary. either by common law or particular custom. By common law: as where a person seised in fee simple or in fee tail dies, and his next heirs are two or more females, his daughter's, sister's, aunt's, cousin's, or their representatives; in this case they shall

all inherit, and these co-heirs are then called coparceners or Litt. s.241,242. parceners. Parceners, by particular custom, are where lands descend, as in gavelkind, to all the males in equal degree, as

son's, brother's, uncle's, &c. And in either of these cases all Ibid.

the parceners put together make but one heir, and have but Co. Litt. 163.

(c) No part of the estate accrues to him who has nothing in the estate when the right

accrues.

2 Inst. 403.

one estate among them. The properties of parceners are in some respects like those of joint-tenants; they having the same unities of interest, title, and possession (d). But they differ from joint-tenants in these points. They are excluded from maintaining against each other an action of waste. They always claim by descent, whereas joint-tenants always claim by purchase; and hence no lands can be held in coparcenary but estates of inheritance which are of a descendible nature; whilst not only estates in fee, and in tail, but for life or years, may be held in joint-tenancy. There is no unity of time necessary to an estate in coparcenary. For if A. has two daughters to whom his estate 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, the estate vesting in each of them at different times. Parceners, though they have an unity have not an entirety of interest. They are Co. Litt. 163, entitled each to a distinct moiety; and of course there is no jus accrescendi or survivorship between them: for each part descends severally to their respective heirs, though the parts being undivided 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 female, called parceners.

Co. Litt. 164, 174.

164.

Of partition of estates in coparcenary.

Litt. s.263, 264.

Co. Litt. 166. 3 Rep. 22.

There are five methods by which parceners may make partition; four of which are by consent, and one by compulsion. The first is where they agree to divide the lands in 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. This privilege is personal; for if the eldest sister die, her issue shall not choose first, but the next sister. But if an advowson descend in coparcenary, and the sisters cannot agree in the presentation, the eldest and her issue, or her husband or her assigns, shall present alone before the younger. 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 conThat by compulsion is where one or more sue out a writ of partition against the others (e); whereupon the sheriff

sent.

(d) See note (a) to this chapter.

(e) The writ of partition was abolished by 3 & 4 Wm. 4, c. 27, s. 36, and the division

165.

shall go to the lands and make partition thereof by the verdict of a jury there impannelled, and assign to each of the parceners her part in severalty. The mansion-house, common of Co. Litt. 164, estovers, common of piscary uncertain, or any other common, without stint, cannot be divided, but the coparceners shall take the profits by turns. If one of the daughters has had an estate given with her in frankmarriage by her ancestor, and 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 frankmarriage, in equal proportion with the rest of the lands descending. The estate in coparcenary may be dissolved either by par- Dissolution of tition, 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.

Brac. 1. 2, c.34.

Litt. s. 266 to

273.

estate in co

parcenary.

Tenants in common are such as hold by several and distinct of tenants in titles, but by unity of possession, because neither knows his common. own severalty, and therefore they all occupy promiscuously. Litt. s. 292. 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 fee tail, or for life, so that there is no necessary unity of interest; one 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 others but yesterday; so that there is no unity of time. The only unity there is, is that of possession. Tenancy in common may be created either by the destruction of the two other estates in joint-tenancy and coparcenary, or by special limitation in a deed. But the destruction must be such as does not sever the unity of possession, but only the

is now effected by commission from a court of equity. To these partitions the law has annexed the incidents of an implied warranty and condition; a warranty by which, if a real action be brought against one of the coparceners by a stranger who claims the land allotted to her, she is enabled to vouch or call upon the rest to join in defending her right, or if she shall be evicted, to contribute from their own allotments to her compensation; and a condition by virtue of which, if lawfully evicted, she may enter on the other allotments, and thus annulling the partition, be restored to her old undivided share in the remaining tenements. If, however, one of the coparceners after partition alien her allotment, the feoffee, or grantee, cannot take advantage of this implied warranty or condition, though it may be enforced against him by the other coparceners.— Burton's Compend. Law of Real Property, 4th ed. p. 115.

Litt. s. 293

Litt. s. 295.
Ibid. s. 309.

unity of title or interest: as if one of two joint tenants in fe alienes his estate for the life of the alienee, the alienee and the other joint-tenant are tenants in common; 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 dif ferent titles and conveyances. If one of two parceners alienes the alienee and the remaining parcener are tenants in common because they hold by different titles, the parcener by descent the alienee by purchase. In short, whenever an estate in jointtenancy or coparcenary is dissolved, so that there be no partition made, but the unity of possession continues, it is turned into a tenancy in common. 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 jointtenancy, it must be tenancy in common. But the law is apt in its constructions, to favour joint-tenantcy rather than tenancy in common. An estate given to A. and B. equally to be divided between them, in wills is a tenancy in common; because the devisor is presumed to have meant what is most beneficial to both the devisees; but in deeds it is a joint-tenancy; implying no more than the law has annexed to that estate, viz. divisibility; this nicety, therefore, in the wording of grants makes it the safest way when a tenancy in common is meant to be created, to add express words of exclusion as well as description, and limit the estate to A. and B. to hold as tenants in common and not as joint-tenants. Tenants in common, like joint-tenants, are compellable by the statutes of Hen. 8, and Wm. 3, before mentioned, to make partition (f). Their other incidents are such as arise from the unity of possession, and are therefore the same as appertain to joint-tenants merely upon that account; but as for the incidents of joint-tenants, Co. Litt. 197. which arise from the privity of title or the union or entirety of interest, these are not applicable to tenants in common, whose interests are distinct, and whose titles are not joint but several.

Salk. 392. 1 Ventr. 32. 3 Rep. 39.

291.

1 Eq. Cas. Abr. 1 P. Wms. 17.

Incidents at

tending a tenancy in com

mon.

Litt. s. 311.

Of the modes by which

estates in common may be dissolved.

Estates in common can only be dissolved two ways; by uniting all the titles and interests in one tenant, by purchase or otherwise, which brings the whole to one severalty; or by making partition between the several tenants in common, which gives them all respective severalties; for, indeed, tenancies in common differ in nothing from sole estates, but merely in the blending and unity of possession.

(f) See ante, pages 166. 168.

CHAPTER XIII.

OF THE TITLE TO THINGS REAL IN GENERAL.

THE title to things real is the means whereby the owner of of the title to lands has the first possession of his property.

There are four several stages or degrees requisite to form a complete title to lands and tenements; namely, the naked possession, the right of possession, the right of property, and the right of possession joined with the right of property.

things real,

Of the requisites of a com

plete title.

The lowest and most imperfect degree of title consists in the of the naked mere naked possession without right. This may happen when possession. one man invades the possession of another, and turns him out, which is termed a disseisin; or after the death of the ancestor or particular tenant, and before the entry of the heir, or him in remainder or reversion, a stranger may get possession and hold out him that had a right to enter. In which cases; till some act be done by the rightful owner to assert his title, such actual possession of the wrong doer is prima facie evidence of a legal title.

The right of possession may reside in one man, while the The right of actual possession is in another. For if a man be disseised or possession. kept out of possession by any of the means before mentioned, yet he has still the right of possession, and may exert it whenever he thinks proper, by entering upon the disseisor and turning him out. But this right of possession is of two sorts: an apparent right of possession, which may be defeated by proving a better and an actual right. Thus, if the disseisor or wrong doer dies possessed of the land, which descends to his heir, by the common law the heir has attained an apparent right, though the actual right is in the person disseised, and it shall not be lawful for the person disseised to devest this apparent right by mere entry or other act of his own, but only by an action at law; for till the contrary be proved the Litt. s. 385. law will presume the right to be in the heir, whose ancestor died seised (a). But if he who has the actual right of possession brings his action within the proper time, he will then, by sentence of law, recover actual possession. Yet, if he omits

(a) By 3 & 4 Wm. 4, c. 27, s. 39, no descent, cast, discontinuance, or warranty, which may happen or be made after 1st January, 1834, shall toll or defeat any right of entry or action for the recovery of land.