quered, and it is thus:-if a man be seised in fee simple or fee tail in lands or tenements of the custom, and tenure of gavelkind, and hath issue, divers sons, and dieth, all the sons(d) shall be coheirs, and equally inherit those lands and tenements, and may make partition, as females do, by deed or writ, and divide as in the case of daughters at common law. (e)

ants.

JOINT TENANCY arises where several persons come Joint tento hold lands or tenements jointly by one title,(ƒ) as where a man being seised of lands doth legally convey the same to three, four, or more to hold to them and their heirs, or to hold to them for the term of their lives, or for another's life, and they become seised by virtue of such conveyance, they are said to be joint-tenants.

The rule of law is, that when lands are conveyed to two or more persons without any modifying or disjunctive words, they take as joint tenants.

The nature of joint tenants is, that the whole estate shall go to the survivor or survivors. (g)

Either of the joint tenants may sever the tenancy by conveying his part or portion to a stranger.

(d) Or brothers, uncles, &c.-The stat. 3 and 4, W. IV. c. 106, applies

to this tenure (see n. (s) to p. 11.)

(e) The methods of making partition are as follows:-First, where Methods of they agree to divide the lands into equal parts in severalty, and that making pareach shall have such determinate part; the second is when they agree tition. to choose some friend to make partition between them, and then the sisters shall choose each of them her part, according to their seniority of ages or otherwise, as shall be agreed; the third method is, when the eldest divides, and then she shall choose last, for the rule of law is, cujus est divisio alterius est electio; the fourth method is, when the sisters agree to cast lots for their shares, and these are the methods by consent. That by compulsion is, when one or more sue out a writ of partition against the others, whereupon the sheriff shall go to the lands and make partition thereof by the verdict of a jury then impannelled, and assign to each of the parceners her part in severalty, Lit. sec. 243.; but, the most usual mode of compulsion is, by a decree of a court of equity. See the acts, 31 Hen. VIII. c. 1. 32 Hen. VIII. c. 32. 8 and 9 W. III. c. 31. 3 and 4 Ann, c. 18. and 7 Ann, c 18. as to partition.

(f) There is this difference between joint tenants and tenants in par. Difference cenary, for if there be three co-partners and one hath issue and dieth in joint tenbefore there be any partition made, that part which belonged to her that ants, and is deceased, shall descend to her issue; and if such parceners die without tenants in issue, her part shall descend not survive to her co-heirs. parcenery.

(g) By the act of 3 and 4, W. IV. c. 27, s 12, for the limitation of actions Limitation and suits, possession of one coparcener, joint tenant, or tenant in com- act, 3 and 4 mon, shall not be the possession of the others, so as to prevent the opera- W. IV. tion of the statute against those not in possession.

B

TENANTS in common are such as hold land by distinct titles, or by one title and several rights; and as joint tenants have one joint freehold, so tenants in common law have separate freeholds; that is, they hold the land, pro indiviso, whether it be fee simple, fee tail, or for a term of life.(h)

Tenants in common are considered as having 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.(i)

ESTATES in fee may be split into several lesser estates, the first of which is called the particular estate, and those which follow the remainders.(j) The particular estate is always in possession, or confers a right to the possession, and must consequently be created by livery of seisin or its equivalent, unless the remainders give chattel interests merely; in which case, entry will be requisite to convert the inchoate interests of the termors into estates.(k)

REMAINDERS are of two kinds, vested or contingent. A vested remainder gives an immediate estate which cannot afterwards be defeated. The remainder-man has as certain an interest in the land as the particular tenant, the only difference between them is, that the latter has the addition of possession.()

A vested remainder may be distinguished by its

(h) Inst. 188; 2 Lit. abr. 559.

Co. Lit. 45, 200.

The particular estate and remainders make but one whole, and are, in fact, but the component parts of one fee.

(k) If a tenant in fee grants to A. for years, with remainder to B. for life, though livery of seisin be not essential to, and would, indeed, destroy the term for years, yet to perfect the remainder, livery must be given to A., which passes the freehold immediately to B. The term is for a moment extinguished, but as the freehold is instantly passed to B., it as instantly revives.

If an estate be limited to one for years, on condition that he shall have the fee on performing some particular act within a specified time, livery of seisin must be given to the termor; and as it cannot pass out of him into a remainder, (there being none,) the term will be extinguished, and he will have an estate in fee, subject to be defeated on non-performance of the act required; but, the term will revive after the condition broken, if it be not then expired.-See Prest. on Abst. vol. ii. p. 90, 116.

(7) If lands be limited to A. for life, with remainder to B. in fee, A. has the particular estate for life, and B. a vested remainder in fee.

capability of taking effect in possession immediately distin-
the determination of the particular estate.
upon

guished.

remainder.

A contingent remainder is a remainder limited, Contingent so as to depend on an event or condition which may never happen, or be performed till after the determination of the previous estate.

between a

The infallible rule of distinction between a Distinction vested and contingent remainder is this: suppose vested and the particular estate determined, can the re- contingent mainder by the terms of its limitation, take effect in possession? if it can, the remainder is vested-if not, it is contingent. (m)

remainder.

sion.

A REVERSION is the ultimate remainder in fee, of a which the grantor or testator limits to himself, or which, being undisposed of, results to him by operation of law, as when a person hath an estate in any hereditament, and grants or assures the same hereditament for a less estate or interest to any other person, then the estate which continues in the grantor is called a reversion. (n) One principal difference between a remainder and reversion is, that to the latter belongs the actual or supposed fruits of the seignory, whence it follows, that if a remainder man grants an estate commensurate with the prior interest in the land, nothing passes; but, if a reversioner makes such a grant, the fruits of seignory will pass, and the conveyance is therefore good.(0)

rever

(m) Thus, if a limitation be to A. for life, and if B., be living at his Limitation. death, then to B. in fee, this gives to B. a contingent remainder in fee, dependent on the event of his surviving A. So the common and ordinary form of limitation to A. for life, remainder to his first and other sons in tail, will give to the sons contingent remainders in tail, if they are not in existence at the time of the grant; but if they are then born, or as soon afterwards as they are born, they take vested remainders in tail.-2 Prest. on Abst, 147. See Ferne on Contingent Remainders.

(n) For instance: If A. seised in fee, gives the land to B., and the heirs Example. male of his body, B. is seised in tail, and the reversion in fee expectant upon that estate tail (that is, when the tenant in tail shall die without keirs of his body) will belong to A. the donor. But if the ultimate fee be limited to trustees in trust for the grantor or his heirs, this is not the old reversion, but a new acquisition, and the heir will take as purchaser.2 Prest. on Abst. 83; and see 3 and 4 W. IV., c. 106, s. 3.

(0) As if A. grant to B. for life, with remainder to C in fee, and C. Example. grant to D. for the life of B., this grant is nugatory. But if a tenant in fee grant to A. for life, and afterwards grant to B. for the life of A., this latter grant will be valid, and confer on B. a remainder, which will fall into possession on the forfeiture or merger of the prior estate in A.-See 2 Prest, on Abst. 86.

AFFIDAVITS.

(1.)

Common Form of the Affidavit of Service of
Declaration in Ejectment.(p)

In the Q. B. (C. P., or Exch. of Pleas.)

Between (g) John Doe, on the demise of

the service of ejectment

Affidavit of A. B., of, &c., maketh oath and saith, that he, this deponent, did on, &c., personally serve C. D., tenant in possession(r) of the premises in the declaration of ejectment hereunto annexed mentioned, [or (if he be not tenant of the whole) some part thereof,] with a true copy of the said declaration, and of the notice thereunder written, hereunto annexed; and that he, this deponent, did, at the same time, read over the said notice to the said C. D., and explained to him the intent and meaning of such service;(s) (or thus, and this deponent

How to ob

(p) In order to obtain judgment against the casual ejector, an affidavit tain judg- must be made of the service of the declaration as in the above form, and mentagainst annexed to the same, upon which a rule for judgment (in default of apthe casual pearance) may be moved for; but, if the circumstances of the case are ejector.

How entitled.

As to service in general.

As to an acknowledg ment by tenant.

special, it is usual to move, in the first instance, for a rule to show cause why the service mentioned in the affidavit should not be deemed good service. See Gulliver v. Wagstaff, 1 W. B. Blk. 317. (See "Ejectment," for other cases.)

(q) The affidavit must be entitled with the name of the casual ejector. 2 Chitt 181.

(r) If no peculiar circumstances take the case out of the general rule, it must state, that the declaration was delivered to the tenant in possession, or his wife, &c., and, that the notice thereto was read and explained at the time of the delivery, or generally, that the tenant was informed of the intent and meaning of the service. See Nos. 1, 2, 3, and 4.

(s) If the affidavit only state that the notice was read, the service will not be sufficient. Doe d. Whitfield . Roe. K. B. T. T. 1815; but, if the tenant acknowledges that he understands the meaning and intention of the service, it will be good without any such reading or explanation, L'oe d. Quintin v. Roe, Ad 215, and see 2 Chit. 186.

at the same time acquainted the said C. D. of the intent and meaning of the said declaration and notice.)

(2).

Affidavit of the Service of Ejectment on several on demises, where there are several tenants.

In the Q. B. (C. P. or Exch, of Pleas.)

Between John Doe, on the several demises of

A. B. and C. D.

E. F.

and

plaintiff,

defendant.

several

demises.

ants.

G. H., of, &c., maketh oath and saith, that he, Several tenthis deponent, did on, &c., personally serve J. K., and L. M., tenants in possession(t) of the premises in the declaration of ejectment hereunto annexed mentioned(u) (or of some part thereof) with the said declaration, and the notice hereunder written, by delivering a true copy of the said declaration and notice to each of them, the said J. K., and L. M. (and if the notice was not directed to all the tenants, say "except that the said notice was directed to each of them, the said J. K. and L. M., separately"); and this deponent, at the same time, read over the said notice to each of them, the said J. K. and L. M., and explained to them respectively the intent and meaning of such service (or generally, that "this deponent, at the same time, acquainted each of them, the said J. K. and L. M., of the intent and meaning of the said declaration and notice.")

(1) The affidavit must be positive that the person served, was the tenant in possession, Doe v. Roe, I Chitt, 574, or, that he acknowledged himself to be so, Goodtitle v. Davis, 1 Barnard. 429.

(u) If several persons be in possession of the disputed premises, and separate declarations in ejectment be served upon them, one affidavit of the service upon all annexed to the copy of one declaration is sufficient, provided one action of ejectment only be intended, but if the ejectments are made several, then separate affidavits of the several services, annexed to copies of the several declarations respectively.