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c. 3.

Receipt of samé reason, one joint-tenant had not formerly any profits.

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 was enacted 1 that an action of

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.?



Extinguish- A joint-tenancy, as such, cannot be alienated either ment of a joint-tenancy. by deed or will ; that is to say, if A and B are joint

tenants, A cannot transfer bis estate to C to hold as

joint-tenant with B.3 One joint-tenant may, howBy release.

ever, “ 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, By severance. although not 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,4 t8 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 jointtenants, if more than one.

Estate in One advantage of the joint-tenant's having effected joint-tenancy survives. a severance of his estate during his lifetime is, that it

will go to his representatives after his death ; and 1 S. 27.

2 Doe v. Chaplin, 3 Taunt. 120. 8 [That is, the joint-tenancy is destroyed, and a tenancy in comunon created.]

4 Parteriche v. Powlet, 2 Atk. 54; Caldwell v. Fellowes, L. R. 9 Eq. 410.

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.

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It will have been gathered, from the above remarks, that a joint-tenant cannot dispose of his estate by will. If he dies without having severed it during his lifetime, it will go to the surviving joint-tenants, or, as it is said, will “survive" to them, and the ultimate survivor will take the whole estate. This is so, notwithstanding that the estate may have been given to them and their heirs." For the surviving jointtenant, having continued for the longest time in possession of the estate, was presumed, in feudal days, to have done most service to the feud, and upon that account was allowed to transmit it to his heir, a privilege which still remains, although the reason for it has ceased to exist.2


The next form of tenancy which we have to con- Tenancy in sider, is a Tenancy in Common. This occurs when common. two, or more, persons have each a distinct and separate, but undivided, share in an estate. Of the four requisites for constituting a joint-tenancy, only one is essential to a tenancy in common, namely, unity of possession ; for tenants in common may have different quantities of interest, created by different acts, done at different times. All that is necessary is that they should hold the same land promiscuously.

1 Bacon's Abridgment, title Joint-Tenants, I. § 1.

? [In this country joint tenancies have by statute been generally turned into tenancies in common, in which this doctrine of survivorship does not prevail.)


Creation of a A tenancy in common, like a joint-tenancy, cannot tenancy in

arise by operation of law, but may be conferred by

any other means by which an estate in land can be Form of created. As previously mentioned, it is necessary words.

for that purpose to express in a deed, though not in a will, that the persons on whom the estate is conferred are to take as tenants in common.



Each tenant in common is, in respect of his share, nearly in the same position as an independent tenant; but a tenant in common in fee-simple has been restrained from committing waste on what is, until severance, the joint property of himself and his cotenants. The 4 & 5 Anne, c. 3, previously referred to, applies to the case of tenants in common, as well as to that of joint-tenants.

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A tenancy in common may not only be alienated by the owner during his lifetime, but differs from a joint-tenancy in being disposable by will. If the tenant dies intestate, his estate will, if it is one which lasts beyond his lifetime, go to his heir, or administrator, according to its nature; and not survive to the other tenants in common.

Estate in The remaining form of tenancy which we have to Coparcenary. notice, is that in Coparcenary. An estate in copar

cenary arises either where the owner in fee-simple of land has died intestate, and without male heirs ; in which case all his female heiresses take jointly; or by some particular custom, as that of Gavelkind, where all a man's sons inherit his land equally, in the event of his dying without having disposed of it. Such an

estate is neither a joint-tenancy nor a tenancy in comAlways arises mon, and differs from both in that it always arises by by operation operation of law, never by act of parties. On the other hand, it partakes in some degree of the nature of both. Thus, it resembles a joint-tenancy in requiring for its existence unity of interest, title, and possession, so that all the coparceners make but one heir between them. In other respects, it resembles a tenancy in common : thus, it does not require unity of time, for on the death of any of the coparceners, their estates will descend to their respective heirs, who will hold as coparceners with the others. Nor does such an estate require unity, although it does require entirety, of interest, since each coparcener is entitled to a distinct share in the estate. It may be added here that a man can be coparcener with himself; as in the case where he holds one moiety of an estate as heir of his father, and the other moiety as heir of his mother.

| Dougall v. Foster, 4 Grant, 319.

A coparcener may alienate his estate by either deed Alienation. or will, and his alienee will hold as tenant in common with the other coparceners.

Coparceners could formerly, where they were all agreed, make a partition of their lands amongst themselves by parol. But the Statute of Frauds 1 first required all partitions to be evidenced by writing, and the Real Property Amendment Act 2 has now made a deed requisite for this purpose. The most convenient way, however, of making partition, either amongst coparceners, tenants in common, or jointtenants, is that which we will now proceed to state.

The views of law and of equity were formerly dif- Statutes

relating to ferent in regard to joint-tenancies and tenancies in

partition. The former were favored by the law, because the divisible services issuing from land (as rent, &c.) are not divided, nor the entire services (as fealty) 1 29 Car. II. c. 8.


2 8 & 9 Vict. c. 106.

multiplied, by the existence of such a tenancy.1 But the latter were preferred by equity, which does not look favorably on the system of survivorship which obtains in a joint-tenancy.

c. 1.

c. 32.

Since law is older than equity, there was a time when joint-tenants, and tenants in common, had all to

concur in order to divide the inheritance. This was 31 Hen. VIII. first changed by the 31 Hen. VIII. c. 1, and the 32 32 Hen. VIII. Hen. VIII. c. 32, which enabled any joint-tenant or

tenant in common to compel the others to make par

tition. The writ by which this was effected under 3 & 4 Wm. these statutes was abolished by the 3 & 4 Wm. IV. IV. c. 27.

c. 27, but the Court of Chancery always exercised a power of compelling partition, in proper cases, be

of the tenants whose estates we have been Partition Act considering in this chapter. And now, by the Parti

tion Act 1868,8 the court is empowered, in a suit for partition, where, if the act had not been passed, a decree for partition might have been made, to direct a sale of the property for the benefit of the parties interested ; and 4 if a sale is requested by a party or

l parties interested, individually or collectively, to the extent of one moiety or upwards in the property to which the suit relates, such sale is to be directed, unless the court sees good reason to the contrary.5

tween any


In cases where all the persons interested in the property agree to have a partition, recourse may be

had to the Inclosure Commissioners, who, under the 11 & 12 Vict. 11 & 12 Vict. c. 99, may, on the application in writ

ing of the persons interested in the undivided parts or shares of any land, direct inquiries whether the

c. 99.

1 2 Bl. Com. 193.

2 Parteriche v. Powlet, 2 Atk. 64, 65. 8 31 & 32 Vict. c. 40, $ 3.

4 S. 4. 6 See as to this Pemberton v. Barnes, L. R. 6 Ch. 685. 6 S. 13.

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