CHAP. IV. Injuries and remedies, in case of. may by proceeding under stat. 6 Ann. c. 18, once a year ascertain whether the tenant for life is still in existence; and a remainderman or reversioner may, like any owner in possession, alienate or devise his already vested interest, though prospective in enjoyment. (m) It is a rule that very general words in a deed or devise will transfer a reversion in any estate the grantor or testator may have, though not particularly named in the deed or will; as by the words" and the reversion, remainder, rents, &c." unless it be qualified by some special subsequent words. (n) But a reversion, even after the expiration of a tenancy from year to year, can only be conveyed by deed. (0) Another incident of a reversion in fee is, that it is assets to pay the specialty debts of the ancestor from whom the lands immediately descended. (p) And that when the owner of a particular estate, as for life, is also the owner of the reversion, there being no intermediate estate, the former merges in the latter. (q). A slight recognition of a tenancy under a void lease by a remainder-man, after the death of the tenant for life, renders the occupier tenant from year to year. (r) As regards civil injuries and remedies, they very much depend on the question, whether the right to the property affected was in possession, or in remainder, or reversion. If to property in possession, the owner's remedy is trespass or ejectment for an immediate injury committed with actual or supposed force; but if the right were in remainder or reversion, the remedy for the same injuries would be an action on the case; and then only when the act complained of really occasioned an injury of such a continuing nature, as actually or probably to prejudice the future enjoyment when it may be supposed it will come into actual possession. When an injury is of so durable a nature as if continued it will injure the right in remainder or reversion, then not only the party in possession may bring his action for the immediate injury to his possessory interest, but the reversioner may also sue for the injury to his (m) But a reversioner, even after a tenancy from year to year, can only convey his interest by deed. Brawley v. Wade, M'Clel. Rep. 664. (n) Shep. Touchstone, 88; 1 B. & Adol. 593; Lut. 761; 1 Ld. Raym. 187; 2 Ves. 48. (0) M'Clel. Rep. 664. (p) 2 Tho. Co. Lit. 152, note R.; 2 Saund. 8, f. n. 4; 3 Bos. & Pul. 643 to 651. (q) Id.; 5 Bar. & Cres. 120; 2 Bla. Com. 177, 178, aliter as to an interesse termini, unless the estate for years comes into possession of the owner of the estate for life. 5 B. & C. 111. (r) 1 B. & Adol. 365. RIGHTS TO REAL PROPERTY. interest; (s) and this, although the injury might by removal, CHAP. IV. even in the course of three days, cease to endure, for there is a present injury to the right; and if a reversioner were to be prevented from bringing his action during the existence of the particular estate, the testimony of the witnesses who could speak to the right might be lost; and therefore, in the case of an ancient window, a reversioner may maintain an action for an obstruction or nuisance, although the same produce no present injury to his reversion beyond that to the right, and which may be removed before the reversioner comes into possession. (t) So both the tenant in possession and the reversioner may respectively sue the hundred for damages to their respective interests, by a riotous and felonious destruction of houses and other named buildings; (u) and where there has been a repetition of such a continuing injury, a reversioner may proceed in several fresh successive actions for each repetition. (x) But the injury must be of such a permanent nature as at least will, in the opinion of a jury, occasion some prejudice, injury or depreciation to the interest in remainder or reversion; as where an ancient light is obstructed by a building erected in such a manner as to constitute a permanent obstruction, in which case the tenant in possession may sue, and also the reversioner; (y) and if the injury were merely a transient trespass, as driving carts over a close, without any removal of the soil, such an injury could not well be considered as enduring so as really to injure the interest of the reversioner; and consequently, he could not sue, and the question of injury to the reversion is generally for a jury; (≈) and in all actions by a remainder-man or reversioner, it must be averred and proved that the act complained of really produced some damage, though very slight evidence even of probable continuing injury would suffice. (a) In case therefore of a mere trespass, if it be essential immediately to litigate the right to commit, the proceeding must be in the name of the occupier with his concurrence. (b) So an immediate remainder-man or reversioner, whether of (3) 9 Bar. & Cres. 134; 4 Man. & Ry. 130, 136 Ancient lights, 4 Burr. 2141; 3 Lev. 209, 359; Com. Dig. Action, Nuisance, B.; 1 M. & S. 284; 1 Taunt. 183, 190; 1 Saund. Rep. 323, b; 2 Saund. 252, b; 3 Car. & P. 617; 2 B. & Adol. 97. (t) 1 Mood. & M. 350; 2 B. & Adol. 97, S. C. & 3 Car. & P. 615; 4 Burr. 2141. (u) 9 Bar. & Cres. 134; 4 Man. & CHAP. IV. TO REAL freehold or copyhold tenure, may obtain an injunction to prevent waste, or may sue a tenant for life (unless dispunishable of PROPERTY. waste) or a stranger for illegally cutting down trees otherwise than for repairs, or for other injury committed during the particular estate for life. (c) As regards criminal offences affecting a remainder or reversion, in general the offence should be laid as affecting the property of the party in possession, and not the remainder-man or reversioner. But to this rule there are exceptions, as between tenants and landlords, for if the former commit any injury to fixtures in the nature of larceny, the offence is punishable as such, and the latter may be described as the property of the lessor, though strictly his interest was, at the time of the offence, only in reversion. (d) V. NUMBER OF coparcenery, All estates or interests in every kind of corporeal and incorther in severalty poreal real property, may be held either in severalty, coparcenery, joint tenancy, or in common. With respect to the modes joint tenancy, or in common.(e) and words by which these various interests may be created, and their properties and incidents in general, we cannot in this summary attempt to consider them in detail, but at most can notice a few incidents of most practical importance. Parceners, &c. One incident as to parceners is, that as they take by descent, their husbands are severally entitled to vote at an election. (ƒ) But all conveyances or devises made to several persons, for the purpose of splitting and multiplying votes, were declared by the former acts to be void, and only one vote could be received.(g) Where, however, such purpose was not apparent, it has lately, in the proceedings under the reform act, been considered that joint tenants or tenants in common might each vote in respect of the same property, if of sufficient value. (h) In the case of a corporation aggregate, neither the whole nor one or more can vote in respect of an estate belonging to such corporation. (i) As to several joint occupiers, each of them is entitled to vote, in case the clear yearly value of the premises shall be of an amount which, when divided by the number of (c) 3 Lev. 130; Fisher on Copyhold, 114; 2 Saund. 133, 252. (d) 7 & 8 Geo. 4, c. 29, s. 45. See ante 147, as to division of the subject; and see 2 Bla. C. 179 to 195, and notes and works there referred to. (f) 1 Bla. C. 174, note 37; Heyw. 99. (g) 7 & 8 Wm. S, c. 25; 53 Geo. 3, c. 49. (h) 2 W. 4, c. 45, s. 29, ante 264. (i) Heyw. Law of Elect. 71. 1. RIGHTS TO REAL PROPERTY. occupiers, shall give a sum not less than 50%. in counties, or 107. CHAP. IV. in cities or boroughs, for each occupier. (k) Before the repeal of the game acts relating to qualifications, each joint tenant or tenant in common must have had an interest in the entire estate of the clear annual value of 100%. or neither was qualified. (7) Each coparcener and tenant in common is expressly enabled to devise his interest, by 32 Hen. 8, c. 1, explained by 34 & 35 Hen. 8, c. 5; and if a tenant in common devise his estate, a subsequent partition will not operate as a revocation.(m) But a joint tenant is not within the acts, and his devise before partition would therefore be inoperative; and if a joint tenant wish to devise his share, his only course is, first, to sever the joint tenancy, which may be effected by a commission from the Chancellor, upon a bill filed in the nature of the common law writ of partition, or by that writ, and he must either make or republish his will after the partition. (n) But there are several other acts which create a severance of a joint tenancy, as a limitation (by deed) to a stranger, or mortgage or lease for life by one joint tenant, or any act which destroys either the unity of interest, of title, or of possession. (o) As respects actions and suits, parceners make but one heir, on which account, in case of copyhold, it should seem that upon admission, they are only liable to pay one set of fees. (p) Like joint tenants, before partition, they must jointly sue and jointly avow, (q) and if one sister distrain, she should avow in her own right, and also as bailiff to her other sister for the entire rent. (r) We have seen that in the case of an advowson, where the parceners cannot agree to present jointly, the eldest sister is first to present, and then her sister. (s) Partition is best effected by a bill in Chancery.(t) Joint tenants must sue and be sued jointly, (u) and they Joint tenants. must join in an avowry. (r) But one joint tenant may, without the consent of his co-tenant, distrain for rent due to all the joint tenants; and in general, if a party have an interest to entitle him to distrain, the averment of his having acted as I. RIGHTS TO REAL CHAP. IV. bailiff is not traversable, (y) and joint tenants and tenants in common may have an account against each other, (2) though a PROPERTY. Suit in equity is frequently preferred. (a) At common law this was only so when one really appointed the other his bailiff or receiver, (b) but 4 & 5 Ann. c. 16, gives this remedy without any such appointment. (c) A notice to quit, signed by one of several joint tenants, though trustees on behalf of himself and the others, is now sufficient to determine a tenancy from year to year. (d) The prior decision, requiring the signature of all, turned upon the particular words in a lease, requiring a notice under their respective hands, and which was therefore holden. to require a signature by all. (e) Joint tenants must all concur in presentation to a living, and if either one present, or they present severally, the ordinary may refuse such a presentee, and after six months may present by lapse; and the same rule holds as to tenants in common of an advowson. (ƒ) Tenants in com mon. Tenants in common being seised by several titles ought in real and mixed actions to sue severally. (g) Thus, in the mixed action of ejectment, there should be separate counts on the separate demises of each, unless they have joined in an actual lease to a third person, when the declaration may be on the demise of such lessee. (h) But in a real or a personal action for an entire thing, as an entire rent, in respect of necessity they should join. (i) So tenants in common shall join in a quare impedit, because the presentation to the advowson is entire. (k) So in detinue of charters, tenants in common shall join, and if one be nonsuit the other shall recover; (k) and it is clear that if there be a joint lease by two tenants in common, reserving an entire rent, the two may join in an action to recover the same; but if there (y) 4 Bing. 562; Year Book, 15 Hen. 7, 17 a. An avowry by one of several coheirs in gavelkind, and a cognizance as bailiff of the other coheir, need not aver an authority to distrain from the other coheirs, 2 Brod. & B. 465; 5 Moore, 297, S. C. (2) 1 Tho. Co. Lit. 783, note R.; Bac. (a) Mad. Ch. Pr. Index, Account. note 8. (c) Id. ibid.; Willes, 209. (d) Doe v. Summersett, 1 B. & Adolph, 135; 3 Taunt. 120. (e) Id. ibid.; 5 East, 491. (f) Co. Lit. 186, b; 2 Inst. 365. (h) Adams's Eject. 3 ed. 209 to 211; Selwyn's N.P. 4th ed. 683; semble overruling 2 Wils. 232, where it is said that tenants in common cannot make a joint lease; and see 271, n. (l). (i) Co. Lit. 196, b, 199, b; 1 Tho. Co. Lit. 777. (k) Co. Lit. 197, b; 1 Tho. Co. Lit. 781. |