781

cannot be

e cannot be tem and be limited :: A

t-tenants of the

kes them joint

Li II.

Jur, if

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d be

to A and B for their ires, 2e en of A; and B are joint-tenants of the Senati rring their Nez Ives, and A has the remainder of the fee in feve

land be given to A and 3, and the heirs of the here both have a joint estate for lift, and A hath nder in tail. Secondly, joint-tenants muft y of title: their estate must be created by one whether legal or illegal; as by one and the one and the fame diffeifin. Joint-tenancy kent or act of law; but merely by purchase, e act of the party: and, unlefs that act the two tenants would have different ferent titles, one might prove good, would abfolutely deftroy the joinmul alfo be an unity of time: their me and the fame period, as well as

INVE

As in cafe of a prefent eftate minder in fee to A and B after a

12 A and B are joint-tenants of used remainder. But if, after a bited to the heirs of A and ce of the particular eftate A er of one moiety in his heir; at meiety becomes vefted in sir are not joint-tenants

485 mamany de Rebels 4 sramon; for one moiety st one link, dia de estar me cry vetted at another 3. were a fer fas to the use of a man, and

formands married in this cafe feems to have ***** va kasband and ze had a joint-eitate, though , for term of their

vested

vested at different times: because the ufe of the wife's estate was in abeyance and dormant till the intermarriage; and, being then awakened, had relation back, and took effect from the original time of creation. Lastly, in joint-tenancy, there must be an unity of poffeffion. Joint-tenants are faid to be feifed per my et per tout, by the half or moiety, and by all: that is, they each of them have the entire poffeffion, as well of every parcel as of the whole". They have not, one of them a feifin of one half or moiety, and the other of the other moiety; neither can one be exclufively feifed 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'. 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 for husband and wife being confidered as one perfon in law, they cannot take the estate by moieties, but both are feifed of the entirety, per tout et non per my; the confequence of which is, that neither the hufband nor the wife can difpofe of any part without the affent of the other, but the whole muft remain to the furvivor k (1).

UPON these principles, of a thorough and intimate union of intereft and poffeffion, depend many other confequences and incidents to the joint-tenant's eftate. If two joint-tenants let a verbal leafe of their land, reserving rent to be paid to one of them, it shall enure to both, in refpect of the joint reverfion. If their leffee furrenders his leafe to one of them, it fhall alfo enure to both, because of the privity, or relation of their estate. On the fame reafon, livery of seisin, made

(1) And if a grant is made of a joint eftate to husband and wife, and a third perfon, the hufband and wife fhall have one moiety, and the third perfon the other moiety, in the fame manner as if it had been granted only to two perfons. So if the grant is to husband and wife and two others, the husband and wife take one third in joint-tenancy. Litt. § 291.

[182]

one cannot be tenant for life, and the other for years; one cannot be tenant in fee, and the other in tail. 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 feveral remainder in tail. Secondly, joint-tenants must also have an unity of title: their estate must be created by one and the fame act, whether legal or illegal; as by one and the fame grant, or by one and the fame diffeifin'. Joint-tenancy cannot arife by defcent or act of law; but merely by purchase, or acquifition by the act of the party: and, unless that act be one and the fame, the two tenants would have different titles; and if they had different titles, one might prove good, and the other bad, which would abfolutely deftroy the jointure. Thirdly, there muft alfo be an unity of time: their eftates must be vefted at one and the fame period, as well as by one and the fame title. As in cafe of a prefent estate made to A and B; or a remainder in fee to A and B after a particular eftate; in either cafe A and B are joint-tenants of this prefent cftate, or this vefted remainder. But if, after a leafe for life, the remainder be limited to the heirs of A and B; and during the continuance of the particular estate A dies, which vefts the remainder of one moiety in his heir; and then B dies, whereby the other moiety becomes vefted in the heir of B: now A's heir and B's heir are not joint-tenants of this remainder, but tenants in common; for one moiety vefted at one time, and the other moiety vefted at another 3 Yet, where a feoffment was made to the use of man, and fuch wife as he fhould afterwards marry, for term of their lives, and he afterwards married; in this cafe it seems to have been held that the hufband and wife had a joint-eftate, though

vested at different times was in abeyance and dormant till the intermarriage; and, being then awakened, had relation back, and took effect from the original time of creation. Laftly, in joint-tenancy, there must be an unity of poffeffion. Joint-tenants are faid to be feifed per my et per tout, by the half or moiety, and by all: that is, they each of them have the entire poffeffion, as well of every parcel as of the whole. They have not, one of them a feifin of one half or moiety, and the other of the other moiety; neither can one be exclufively 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'. 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: for husband and wife being confidered as one perfon in law, they cannot take the estate by moieties, but both are feifed of the entirety, per tout et non per my; the confequence of which is, that neither the hufband nor the wife can difpofe of any part without the affent of the other, but the whole must remain to the furvivor * (1).

because the use of the wife's estate

UPON these principles, of a thorough and intimate union of intereft and poffeffion, depend many other confequences and incidents to the joint-tenant's eftate. If two joint-tenants let a verbal leafe of their land, referving rent to be paid to one of them, it fhall enure to both, in refpect of the joint reverfion. If their leffee furrenders his leafe to one of them, it fhall also enure to both, because of the privity, or relation of their estate". On the fame reason, livery of seisin, made

z Dyer. 340. 1 Rep. 101.

h Litt. §288. 5 Rep. 10.

i Quilibet torum tenet et nibil tenet; feilicet, totum in communi, et nihil feparatim per fe. Bract. 1. 5. tr. 5. c. 26.

k Litt. § 665. Co. Litt. 187. Bro. Abr. t. cui in vita. 8. 2 Vern. 120. 2 Lev. 39.

1 Co. Litt. 214.

m Ibid. 192.

(1) And if a grant is made of a joint eftate to husband and wife, and a third perfon, the husband and wife shall have one moiety, and the third perfon the other moiety, in the fame manner as if it had been granted only to two perfons. So if the grant is to hufband and wife and two others, the bufband and wife take one third in joint-tenancy. Litt. § 291.

to one joint-tenant, fhall enure to both of them: and the entry, or re-entry, of one joint-tenant is as effectual in law as if it were the act of both. In all actions alfo relating to their joint eftate, one joint-tenant cannot fue or be fued without joining the other P. But if two or more joint-tenants be seised of an advowfon, and they prefent different clerks, the bishop may refuse to admit either: because neither jointtenant hath a several right of patronage, but each is seised of 183] the whole: and, if they do not both agree within fix months, the right of presentation fhall lapfe. But the ordinary may, if he pleases, admit a clerk presented by either, for the good of the church, that divine fervice may be regularly performed; which is no more than he otherwife would be entitled to do, in cafe their difagreement continued, fo as to incur a lapfe: and, if the clerk of one joint-tenant be so admitted, this shall keep up the title in both of them; in refpect of the privity and union of their eftate 1. Upon the fame ground it is held, that one joint-tenant cannot have an action against another for trefpafs, in refpect of his land; for each has an equal right to enter on any part of it. But one joint-tenant is not capable by himself to do any act, which may tend to defeat or injure the eftate of the other; as to let leafes, or to grant copyholds: and, if any wafte be done, which tends to the deftruction of the inheritance, one joint-tenant may have an action of waste against the other, by conftruction of the ftatute Weftm. 2. c. 22. So too, though at common law no action of account lay for one joint-tenant against another, unless he had conftituted him his bailiff or receiver ", yet now by the statute 4 Ann. c. 16. joint-tenants may have actions of account against each other, for receiving more than their due fhare of the profits of the tenements held in joint-tenancy (2)

(2) This action is now perhaps never brought; but the pracice is to apply to a court of equity to compel an account; which