Alienation of powers. By release. Involuntary the power. Both powers appendant and those in gross may be alienated. Where the power is one which the donee may exercise for his own benefit, he has, in fact, something reserved to him out of the property subject to his power, and this he may alienate at pleasure by releasing his power. If, for example, having a power of charging land with the payment of a sum of money to himself, he joins in a conveyance of the land clear of the charge, this will operate as a release of his power (c). And a power in gross may also be released, although the exercise of such a power cannot confer any benefit on the donee of the power (d). But this is subject to the rule that the release must not be made with the object of obtaining for the donee of the power some benefit which he could not get otherwise. For, in such a case, equity will refuse to give present effect to the release, so far as it would operate in favour of the donee (e). Lastly, a power, the exercise of which can confer any benefit on the donee of the power, may be the subject of involuntary alienation; it being provided by the Bankruptcy Act, 1869 (ƒ), that (g) the property of any bankrupt divisible amongst his creditors (b) Savile v. Blacket, 1 P. Wms. 777. (c) See West v. Berney, 1 Russ. & My. 431, 434. (d) Smith v. Death, 5 Madd. 371; Horner v. Swann, Turn. & Russ, 430. (e) Cunynghame v. Thurlow, 1 Russ. & My. 436". (f) 32 & 33 Vict. c. 71. (g) S. 15. shall include the capacity to exercise, and to take proceedings for exercising, all such powers in, or over, or in respect of property, as might have been exercised by the bankrupt for his own benefit at the commencement of the bankruptcy, or during its continuance, except the right of nomination to a vacant ecclesiastical benefice. Joint-tenancy. CHAPTER XI. OF ESTATES IN JOINT-TENANCY, TENANCY IN COMMON, AND COPARCENARY. HITHERTO We have considered estates in land as belonging to one tenant only: we will, in this chapter, briefly consider some cases in which an estate may belong to more than one tenant. The first of these which we will notice is that of an estate being held in Joint-Tenancy, or by two or more Joint-Tenants. A joint-tenancy may exist in any kind of estate in land. In order to constitute it, there must be, amongst the tenants, unity of interest, unity of title, unity of time, and unity of possession (a). In other words, the tenants must have the same quantity of interest (for instance, one cannot hold for life, and another in fee-simple); their estates must be created by the same act, and must commence simultaneously (except under circumstances to be presently noticed); and each must have entire possession of the land concurrently with the others, thus constituting one owner and one estate. The exception above referred to occurs where joint-tenants take by way of use or under a will. Thus, if there be a gift, made either by deed or by will, to the use of the children of A., or a gift by will to the children of A., those children of A. who may be born after the deed or will has (a) 2 Bl. Com. 180. come into operation will take, each successively on birth, an estate in joint-tenancy with the others (b). An estate may be granted to be held in joint- Creation of a joint-tenancy. tenancy by any person capable of creating that estate. Joint-tenancy cannot arise by operation of law, but may be conferred by parol, when the estate in question can be created by parol; otherwise a deed or will is requisite. Such an estate occurs where lands are conveyed to Form of words. two or more persons without any modifying words. Thus, a grant to A. and B., or to A. and B. and their heirs, will confer upon A. and B. an estate in joint-tenancy, for life, or in fee-simple, as the case may be. And if the gift is made by deed, it would seem to be doubtful whether the addition of the word "equally," or of the words "equally to be divided between them," or such like, would operate to prevent A. and B. from taking as joint-tenants (c). In a will, however, the apparent intention of the donor would, in such a case, be taken into consideration, and each donee would take a separate undivided share. The incidents of an estate by joint-tenancy will, to Incidents of a joint-tenancy. a great extent, depend upon the nature of the estate thus held. But since all the tenants constitute in law Charges or grants. but a single owner, charges or grants made by any one of them on or out of the joint estate will cease with his death, and do not bind the others. For the Receipt of profits. same reason, one joint-tenant had not formerly any remedy against another who had received an undue proportion of the profits of the estate. But by the 4 & 5 Anne, 4 & 5 Anne, c. 3, it is enacted (d) that an action of . 3. (b) Shelley's Case, note (Q), 1 Rep. 100b; Kenworthy v. Ward, 11 Ha. 196. (c) Sug. Pow. 441, but see I Wat. Cop. 138, note (2); Fisher v. Wigg, 1 P. Wms. 14. (d) S. 27. Leases. Extinguish tenancy. By release. account shall and may be brought and maintained by one joint-tenant against the other, for receiving more than comes to his just proportion, and against the executor or administrator of such joint-tenant. Jointtenants may, if their estate permits, make leases either jointly or separately; but if they demise jointly, any one of them may separately put an end to his demise, whether his companions join him or not (e). A joint-tenancy, as such, cannot be alienated either ment of a joint- by deed or will; that is to say, if A. and B. are jointtenants, A. cannot transfer his estate to C. to hold as joint-tenant with B. One joint-tenant may, however, "release" his interest to another, but this latter, if there are more than two joint-tenants, will not thereby obtain a larger proportion of the estate than the others, who will equally benefit by the release, although not By severance. professedly made to them. And a joint-tenant may sever his estate by conveying it, or even by entering into a binding agreement to convey it (ƒ) or devise it (g) to a third party; but the act of severance will of itself convert the estate of the transferee into a tenancy in common as between himself and the other joint-tenants, if more than one. Estate in joint tenancy survives. One advantage of the joint-tenant's having effected a severance of his estate during his lifetime is, that it will go to his representatives after his death; and partly on this account, partly because of the inconveniences to which a joint-tenancy gives rise, the Legislature has provided peculiar facilities for enabling joint-tenants to sever their estates. To these we will, however, refer a little later on, since they apply to other forms of ownership besides that of jointtenancy. (e) Doe v. Chaplin, 3 Taunt. 120. (f) Parteriche v. Powlet, 2 Atk. 54; Caldwell v. Fellowes, L. R. 9 Eq. 410; Baillie v. Treharne, 17 Ch. D. 388. (g) Taylor v. Taylor, 11 Ch. D. 267. |