then on the death of one the estate will cease; and it may be proper to remind the reader, that in the case of a gift to two persons and the survivor of them, and the heirs of such survivor, they take as joint-tenants for lives, with a contingent Supra, p. 154, remainder to the survivor in fee. The words in italics are not implied by law, and are consequently not surplusage.

[But where the gift is to A. and B., and the survivor of them, their heirs and assigns for ever, this gives a joint-tenancy in fee, and not estates for life, with remainder in fee to the survivor. Doe v. Sotheron, 2 Bar. & Adol. 628.]

A covenant or agreement by a joint-tenant to sell creates an equitable severance of the jointure, and will be enforced in equity against the survivor, notwithstanding the dictum in 2 Vern. 63. See 2 Ves. sen. 634. Brown v. Raindle, 3 Ves. 257. Mr. Preston, however, considers it questionable whether the contract will be enforced against the survivor, but on what grounds does not appear. 2 Abs. 67. If the contract be an equitable severance (and that it is so all the books agree), it seems strange to say that it shall be enforced against the contracting party himself, and not against the survivor. A contract is more than a mere lien or charge, it confers an estate executed, on the rule, that what is agreed to be done, is in equity considered as actually performed; and a contract to levy a fine by a tenant in tail does not seem to be in pari materiá, as such a contract is not deemed of any efficacy against the issue in tail, from the peculiar wording of the statute de donis.

Judgments and crown debts against a deceased joint-tenant do not affect the estate in the hands of the survivor; but if a joint-tenant aliens so as to sever the jointure, or if he becomes the survivor or sole owner by release, prior judgments against him become available charges on the property. Litt. s. 286. 6 Co. 78 b. So of dower and curtesy. Co. Litt. 30 a. 183 a. But the surviving joint-tenant is entitled to emblements, if the jointure continues up to the death of one of them. 2 Vern. 323.

155.

CHAP. XII.

2 Bl. Comm.

c. 4. and the

Comment.

OF A TENANCY IN COMMON.

TENANTS in common take also by purchase,

191. Litt. b. 3. but hold by distinct titles, and have separate freeholds, being not seised per mie and per tout, as joint-tenants are*: and the best way to create a tenancy in common is either to limit one moiety of the premises expressly to one, and the other moiety to the other, or to use the words "to hold as tenants in common and not as joint-tenants;" as the law may otherwise construe it a joint estate. †

* They have also separate inheritances as distinct from each other as several tenants. Therefore a lease by two tenants in common operates as a distinct lease as to each of them. Co. Litt. 45. 200. If two tenants in common in fee grant a rent charge of 20s., the grantee will have two rent charges of 20s. each, one out of each moiety; and no words expressive of a contrary intention will prevent this effect. 5 Co. 7 b. To do that, they should join in a conveyance to A. B. and his heirs, to the use, intent, and purpose that the annuitant might receive one rent charge of 20s. out of the lands thereby released.

In a will, the words

equally to be divided"

66

equally between or to them" - equally" alone — “ re

As the possession of tenants in common is un- Touchst. 292. divided till partition, they cannot exchange with

spectively"—" rateably” – "share and share alike," and words of a similar distributive import, create a tenancy in common, as well in respect of real as personal estate. 2 Vent. 366. 1 Vern. 32. 1 Lev. 232. Styles, 434. Salk. 226. Het. 29. Cowp. 657. 1 New Rep. 82. 3 Ves. 260. 2 Ca. Chan. 56. 2 Atk. 121. 2 Meriv. 70. 2 Bing. 151. 2 Roper's Leg. 329. ed. 1828. A deed operating by virtue of the statute of uses is construed in the same manner; but those words in an instrument taking effect by the common law, will give a joint-tenancy. Thus, a feoffment to and to the use of two persons and their heirs equally to be divided between them, will give the feoffees an estate in joint-tenancy, because the use and the seisin being to the same persons, the statute does not operate, and the parties are said to be in by the common law. But if the feoffment had been to A. and his heirs, to the use of B. and C. and their heirs to be equally divided between them, B. and C. would have been tenants in common. This distinction, however, is far from settled, and the inclination of the Courts at the present day seems to be, to construe the words "equally to be divided" as conferring a tenancy in common in all cases. See 1 Watk. Cop. [113]. 144. 4th ed., and the cases cited in the notes there. Real estate purchased with partnership property is, to all intents, considered in equity as held in common, though the conveyance may have been to the partners in joint-tenancy. 3 Eden. Bro. C. C. 200.

[This last proposition requires some qualification. In the absence of any agreement between the partners that the real estate so purchased shall be considered personalty, it seems doubtful whether the mere circumstance that the land was bought for the purposes of the partnership will alone convert it as between the representatives of the partners. 3 Bro. C. C. 199. Belt's ed. note. 7 Ves. 453. 9 Ib. 500. 11 Ib. 665.

Gilb. Ten. 74.

each other, though they may exchange, either together or separately, with a stranger.

But as the seisin of each is distinct, and their estates several, one may enfeoff the other; or, if the other have a greater estate, surrender to him. So one may devise his part to the other: but one cannot release to his companion, as such.*

Tenants in common may transfer their re

Roper's Husb. & Wife,
The subject was men-

2 Dow. 242. 1 Swans. 508. 521.
2d ed. 346., and Mr. Jacob's note.
tioned in the recent case of Bligh v. Brent, 2 Yo. & Col. 268:
but the point decided was, that Chelsea Waterworks' shares are
personal property.

Probably the following rule may be deduced from the cases cited that the real estate purchased with the joint effects of the partnership will, as between the partners, be considered personal estate; and that the real estate would, with other joint property, be primarily liable to the payment of the joint partnership debts, as between the representatives; and that, if the heir or widow of a partner be entitled, their right can attach only on the surplus. Where real estate was purchased out of the partnership effects, and by the agreement of the partners was to be the separate property of one of them, to whom it was conveyed, he being considered the debtor to the partnership for the purchase money, the wife was held entitled to dower out of the whole. Smith v. Smith, 5 Ves. 189. See 2 Cru. Dig. 409-10. Ed. 4.]

*Because such release must operate by way of enlargement, and there is no estate in the companion in the share of the releasor to be enlarged.

spective shares to strangers by the usual modes of conveying freehold property; and they may compel a partition among themselves.*

* Compulsory partitions are now usually effected by commissions out of Chancery, which are granted of right and perfected by reciprocal conveyances, by which means alone an amicable partition of all joint estates may be effected; and an agreement in writing to make a partition will have the same effect in equity. The commission is most common when there are particular estates and reversions in one or both moieties, as then all parties are bound by it, if it be made pursuant to the requisitions of the statutes 31 Hen. 8. c. 1. & 32 Hen. 8. c. 32. But the only mode of making an effectual partition where one of the parties is an infant is by act of par- But see Gasliament. [The recent act of 1 Will. 4. c. 60. does not extend to cases of partition, sect. 18., where the infant is a trustee the act, cap. 65. of the same session, provides for the case of a person having agreed to make partition and afterwards becoming lunatic, sect. 27.; but it does not appear that it authorizes guardians on behalf of an infant to make partition.] Under the general enclosure act (41 Geo. 3. c. 109. s. 16.) the commissioners have power to allot in severalty all the old inclosures and new allotments held in joint-tenancy, coparcenary, or in common, within the parish, whether the parties are adult, infant, lunatic, or covert.

kell v. Gaskell, 6 Sim. 643.