the last survivor, who is then entitled to the whole estate. This right is called the jus accrescendi, because the right upon the death of one joint-tenant accumulates to the survivors. But there is no survivorship of a capital, or a stock in trade, among merchants and traders; for this would be ruinous to the family of the deceased partner; and it is a legal maxim, jus accrescendi inter mercatores pro beneficio commercii locum non habet. And as this jus accrescendi ought to be mutual, neither the king, nor any corporation, can be a joint-tenant with a private person. For here is no mutuality; the private person has not even the remotest chance of being seised of the entirety, by benefit of survivorship, for the king and the corporation can never die.

Joint-tenancy may be destroyed without any alienation, by merely disuniting the possession. And therefore, if the jointtenants agree to part their lands, and hold them in severalty, they are no longer joint-tenants, and the right of survivorship is at once destroyed. And any joint-tenant may now enforce partition. The joint-tenancy may also be destroyed by destroying the unity of title; as if one joint-tenant conveys his estate to a third person: here the joint-tenancy is severed, and turned into tenancy in common; for the grantee and the remaining joint-tenant hold by different titles, though, till partition made, the unity of possession continues. Joint-tenancy may also 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. So that 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; which in general it is advantageous to effect, since thereby the right of survivorship is taken away, and each may transmit his own part to his own heirs.

III. An estate held in coparcenary is where lands of inheritance descend from the ancestor to two or more persons. It arises

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; in this case they shall all inherit, as will be shown hereafter; and these coheirs are then called coparceners, or, for brevity, parceners only. Parceners by particular custom are where lands descend, as in gavelkind, to all the males in equal degree. And, in either of these cases, all the parceners put together make but one heir, and have but 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. They may sue and be sued jointly for matters relating to their own lands, and they cannot have an action of trespass against each other. But they differ from joint-tenants, in that they are excluded from maintaining an action of waste. Parceners also differ from joint-tenants in four other points:1. They always claim by descent, whereas joint-tenants always claim by purchase. 2. There is no unity of time necessary; for if a man has two daughters, to whom his estate descends, 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. 3. Parceners, though they have an unity, have not an entirety of interest. They are properly entitled each to the whole of 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 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. But if the possession be once severed by partition, they are no longer parceners, but tenants in severalty; or if one parcener aliens her share, though no partition be made, then are the lands no longer held in coparcenary, but in common.

Parceners are so called because they were always obliged to make partition, which joint-tenants formerly were not; and if this was not done voluntarily, it might be compulsorily, as it is now often effected, by an action. There are some things, however, in their nature impartible. The mansion-house and common of estovers shall not be divided; but the eldest sister, if she pleases, shall have them, and make the others a reasonable

satisfaction in other parts of the inheritance: or, if that cannot be, then they shall have the profits of the thing by turns, and in the same manner they take an advowson.

The estate in coparcenary may be dissolved, either by partition, 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.

IV. Tenants in common are such as hold by several and distinct titles, but by unity of possession; because none knoweth his own severalty, and therefore they all occupy promiscuously. 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 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 other's but yesterday; so there is no unity of time.

Tenancy in common may be created by the destruction of the two other estates, joint-tenancy and coparcenary, or by special limitation in a deed. By such destruction I mean as does not sever the unity of possession, but only the unity of title or interest: as, if one of the two joint-tenants in fee aliens his estate for the life of the alienee, the alienee and the other jointtenant are tenants in common; for they now have several titles; the other joint-tenant by the original grant, the alienee by the new alienation; and they also have several interests, the former joint-tenant in fee-simple, the alienee for his own life only. So if one of two parceners aliens, 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 joint-tenancy or coparcenary is dissolved, 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. For the law is apt, in its construc

tions, to favour joint-tenancy rather than tenancy in common, because the services issuing from land, as rent, &c., are not divided, nor the entire services, as fealty, multiplied, by jointtenancy, as they must necessarily be upon a tenancy in common ; and therefore it is 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.

As to its incidents, tenants in common, like joint-tenants, are compellable to make partition of their lands; yet there is no survivorship between them, as properly they take distinct moieties of the estate. The other incidents are such as merely arise from the unity of possession, and are therefore the same as appertain to joint-tenants: such as being liable to reciprocal actions of waste, and to account for the property; and if one actually turns the other out of possession, an ejectment will lie against him. But, as for other incidents of joint-tenants, which arise from the privity of title, or the union and entirety of interest, such as joining or being joined in actions, unless in the case where some entire or indivisible thing is to be recovered, these are not applicable to tenants in common, whose interests are distinct, and whose titles are not joint but several. It follows that tenancies in common can only be dissolved two ways: 1. By uniting all the interests in one tenant, which brings the whole to one severalty. 2. By making partition between the several tenants in common, which gives them all respective severalties.

CHAPTER X.

OF THE TITLE TO THINGS REAL.

I COME now to consider the title to things real, with the manner of acquiring and losing it.

The lowest kind of title consists in naked possession, or the actual occupation of the estate, without any apparent right to such possession. This may happen when one man invades the possession of another, and turns him out of the occupation of his lands; or it may happen when, after the death of the ancestor

and before the entry of the heir, or after the death of a particular tenant and before the entry of him in remainder or reversion, a stranger gets possession, and keeps out him that has a right to it. Here the wrongdoer has a mere possession, which the rightful owner may put an end to. But till some act be done by the rightful owner to assert his title, such actual possession is primâ facie evidence of a legal title in the possessor.

To constitute a perfect title more is necessary, namely, the right of possession, which may reside in one man, while the actual possession is in another. For if a man be kept out of possession, though the actual possession be lost, yet he has still the right of possession; and this right he may exert by turning the intruder out of that occupancy which he has illegally gained. Yet if he omit to do so within the time fixed by law, the intruder may gain an actual right of possession, which is in itself perfect and complete, so that no further remedy remains.

By our old law, if a man was turned out of possession, the intruder thereby gained a mere naked possession, and the owner retained the right of possession and right of property. If the intruder died, and the lands descended to his son, the son gained an apparent right of possession, but the owner still retained the actual right both of possession and property. If he acquiesced, however, for thirty years without bringing any action to recover possession, the son gained the actual right of possession, and the owner retained nothing but the mere right of property. And even this right of property failed, or became without remedy, unless pursued within sixty years. Hence one man might have the possession, another the right of possession, and a third the right of property.

But the law now recognises only the possession, and the right of possession, ignoring altogether any right of property, as distinct from these symbols of ownership. To an explanation of the modern law, I shall accordingly confine myself; the great change I allude to having been effected upwards of forty years ago by the statute 3 & 4 Will. IV. c. 27; which provided that, at the determination of the period which it limits, the right and title of the person, who might within that time have pursued his remedy for the recovery of his property, shall be extinguished; so that right is made dependent on possession, by a limitation of