liable to merger, [178] merger by the operation and construction, though not by Estate tail not the express words, of the statute de donis: which operation and construction have probably arisen upon this consideration; that, in the common cases of merger of estates for life or years by uniting with the inheritance, the particular tenant hath the sole interest in them, and hath full power at any time to defeat, destroy, or surrender them to him that hath the reversion; therefore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate. But, in an estate-tail, the case is otherwise: the tenant for a long time had no power at all over it, so as to bar or to destroy it, and now can only do it by certain special modes, to be mentioned hereafter: it would therefore have been strangely improvident to have permitted the tenant in tail, by purchasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue and hence it has become a maxim, that a tenancy in tail, which cannot be surrendered, cannot also be merged but on failure in the fee; but immediately the issue can no longer be inprivilege jured, as in tenancy in tail after possibility of issue extinct, the privilege from merger ceases, as also when the possiOne term of bility of inheriting by the issue is done away with. It is now settled that one term of years may merge in another,TM and as all terms of years are equal in the eye of the law, a term of 1000 years may merge in a term of one year, if the latter be the term in reversion. This doctrine is of much practical importance, particularly in marriage settlements, where terms are frequently created. of issue, this ceases. years may merge in another. j Cro. Eliz. 202. k See Book IV. ch. 9. 13 Prest. Conv. 360-363. m Hughes v. Robotham, Cro. Eliz. 303; Stephens v. Bridges, 6 Mad. 66; and see 3 Prest. Conv. 183, CHAPTER THE SIXTH. [179] OF ESTATES IN SEVERALTY, JOINT-TENANCY, be held in se joint tenancy, WE come now to treat of estates, with respect to the num- Estates may ber and connexions of their owners, the tenants who occupy veralty, in and hold them. And, considered in this view, estates of in co-parceany quantity or length of duration, and whether they be nary and in in actual possession or expectancy, may be held in four different ways; in severalty, in joint-tenancy, in coparcenary, and in common. common. severalty. I. He that holds lands or tenements in severalty, or is 1. Estates in sole tenant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest, during his estate therein. This is the most common and usual way of holding an estate; and therefore we may make the same observations here, that we did upon estates in possession, as contradistinguished from those in expectancy, in the preceding chapter that there is little or nothing peculiar to be remarked concerning it, since all estates are supposed to be of this sort, unless where they are expressly declared to be otherwise; and that in laying down general rules and doctrines, we usually apply them to such estates as are held in severalty. I shall therefore proceed to consider the other three species of estates, in which there are always a plurality of tenants. joint-tenancy. II. An estate in joint-tenancy is where lands or tene- II. Estates in ments are granted to two or more persons, to hold in feesimple, for life, for years, or at will. In consequence of [180] such grants an estate is called an estate in joint-tenancy," a Litt. sec. 277. Who may be jomt-tenants in tail. How jointtenancy may be created. The properties of joint derived from its unities, which are and sometimes an estate in jointure, which word as well as the other signifies an union or conjunction of interest; though in common speech the term jointure, is now usually confined to that joint estate, which by virtue of the statute 27 Hen. VIII. c. 10, is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman's dower.b Blackstone lays it down, that lands may be granted to two or more persons as joint tenants in tail; but as he mentions afterwards, this cannot be unless the donees can lawfully intermarry. Thus if lands be limited to two men or two women in tail, as to John and Robert, and to the heirs of their bodies begotten; or to Ann and Mary, and the heirs of their two bodies begotten; John and Robert in the one case, and Ann and Mary in the other, will have a joint estate for the term of their lives, and on the death of the survivor, the issue of each shall take a moiety of the lands. In unfolding this title, and the two remaining ones in the present chapter, we will first inquire, how these estates may be created; next, their properties and respective incidents; and lastly, how they may be severed or destroyed. 1. The creation of an estate in joint-tenancy depends on the wording of the deed or devise by which the tenants claim title; for this estate can only arise by purchase or grant, that is, by the act of the parties, and never by the mere act of law. Now, if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if an estate be granted to A. and B. and their heirs, this makes them immediately joint-tenants in fee of the lands. For the law interprets the grant so as to make all parts of it take effect, which can only be done by creating an equal estate in them both. As therefore the grantor has thus united their names, the law gives them a thorough union in all other respects. For, 2. The properties of a joint estate are derived from its tenancy are unity, which is fourfold; the unity of interest, the unity of title, the unity of time, and the unity of possession: or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance, com b See page 68. c Litt. sec. 283, sec. 286; Co. Litt. 182 b.; Cook v. Cook, 2 Vern. 545, cit. 2 P. Williams, 530, and post, p. 122. mencing at one and the same time, and held by one and the same undivided possession. One I. Unity of interest. title. First, they must have one and the same interest. joint-tenant cannot be entitled to one period of duration or quantity of interest in lands, and the other to a different; one cannot be tenant for life, and the other for [181] years; one cannot be tenant in fee, and the other in tail.d But, if land be limited to A. and B. for their lives, this makes them joint-tenants of the freehold; if to A. and B. and their heirs, it makes them joint-tenants of the inheritance. If land be granted to A. and B. for their lives, and to the heirs of A.: here A. and B. are joint-tenants of the freehold during their respective lives, and A. has the remainder of the fee in severalty: or, if land be given to A. and B., and the heirs of the body of A.; here both have a joint estate for life, and A. hath a several remainder in tail. Secondly, joint-tenants must also have an unity 2. Unity of of title their estate must be created by one and the same act, whether legal or illegal; as by one and the same grant, or by one and the same disseisin. Joint-tenancy cannot arise by descent or act of law; but merely by purchase, or acquisition by the act of the party; and, unless that act be one and the same, the two tenants would have different titles; and if they had different titles, one might prove 'good, and the other bad, which would absolutely destroy the jointure. Thirdly, when the estates take effect under the common law, there must also be an unity time: in what of time: their estates must be vested at one and the same necessary. period, as well as by one and the same title. As in case of a present estate made to A. and B.; or a remainder in fee to A. and B. after a particular estate; in either case A. and B. are joint-tenants of this present estate, or this vested remainder. But if, after a lease for life, the remainder be limited to the heirs of A. and B.; and during the continuance of the particular estate A. dies, which vests the remainder of one moiety in his heir; and then B. dies, whereby the other moiety becomes vested in the heir of B. now A.'s heir and B.'s heir, are not jointtenants of this remainder, but tenants in common; for 3. Unity of estates it is one moiety vested at one time, and the other moiety vested at another.h But unity of time is not a necessary incident to estates taking effect under the Statute of Uses, or by executory devise. In these estates the seisin will remain in the releasee to uses, or the heir at law until the uses arise. Thus where a feoffment was made to the use of a man, and such wife as he should afterwards marry, for the term of their lives, and he afterwards married; in this case it seems to have been held that the husband and wife had a joint-estate, though vested at [182] different times; because the use of the wife's estate remained in the releasee to uses till the intermarriage; and then had relation back, and took effect from the original time of creation. Thus also lands were limited to the following uses, to A. and B. his wife, for their lives, remainder to their first and other sons in tail, remainder to the issues female of their bodies begotten. A. had two daughters, Anne and Martha. Martha died without issue, and afterwards Anne died. And it was held that Anne and Martha took as joint-tenants for life, with several inheritances, and the time of vesting was thought unimportant. And in a subsequent case Lord Thurlow held that the vesting of the estate at different times would not prevent jointtenancy. Lastly, in joint-tenancy there must be an unity of possession. Joint-tenants are said to be seised per my et per tout, by the half or moiety, and by all; that is, they each of them have the entire possession, as well of every parcel as of the whole. They have not, one of them a seisin of one half or moiety, and the other of the other half or moiety; neither can one be exclusively seised of one acre, and his companion of another; but each has an undivided moiety of the whole, and not the whole of an undivided moiety.m And therefore, if an estate in fee be given to a man and his wife, they are neither properly joint-tenants, nor tenants in common ; Unity of possession. Tenancy by entireties. h Co. Litt. 188. 1 Dyer 340; 1 Rep. 101. j Earl of Sussex v. Temple, 1 Lord Raym. 310; Oates v. Jackson, 2 Stra. 1172. Stratton v. Best, 2 Bro. C. C. 233; and see Mogg v. Mogg, 1 Meriv. 654. 1 Litt. sec. 288; 5 Rep. 10. m Quilibet totum tenet et nihil tenet; scilicet, totum in communi, et nihil separatum per sc. Bract. 1. 5, tr. 5, c. 26. |