JOINT TENANCY. And so if a conveyance be made to A. to the use of a man, and such wife as he shall marry, and he afterwards marry, he and his wife will be joint-tenants, though they come to their estates at several times; because he was seised of a qualified fee before the marriage, when the wife had nothing; and by the marriage, the contingent estate vested in them both at the same time, by the same limitation. This, however, must be confined to the case put of an use, where the estate is vested and settled in the grantee, till the future use come into esse; for at common law it would be otherwise, as in the cases put above". And husband and wife may be joint-tenants, in the manner we have seen, of a lease for years, or other chattel real, as well as of a freehold or estate of inheritance, but not of goods or mere personalty. If, therefore, these be given to a husband and wife, the wife shall not have them by survivorship, but the executor of the husband ". So if a statute be acknowledged to baron and feme, they are joint-tenants of this, and the feme shall have all by survivorship and it is the same of an obligation made to them d And if a husband send out money in the names of himself and his wife, upon mortgage and bond, and dies, the wife will, it is said, be entitled to the money by survivorship, if there are assets sufficient to pay the husband's debts. But in these cases, where the husband is possessed jointly with his wife of a leasehold interest, or other chattel, he may dispose of it in his life-time, without the consent or concurrence of his wife, for all vested interests in terms for years, or other chattels real of the wife, so become y Co. Lit. 188, a; 1 Co. 100, b. 101, a; Dyer, 274, b. 340. z Sce Co. Lit. 9, a; and 1 Co. 100, b. 101, a. a 43 E.3, 10; 1 Rol. Abr. b 1 Rol. Abr. 349- a Ibid. 342. f 1 Rol. Abr. 343. the property of the husband, as to be subject to his disposition during her life; and it makes no difference whether the property belonged to her before her marriage or came to her afterwards. But the husband cannot devise a lease made to him and his wife for years; for the wife is in by survivorship before the devise takes effect". And if a rent-charge be granted to a man and a woman for years, who afterwards intermarry, and arrears are incurred, and then the husband die, the wife shall have not only the residue of the rent, but also the arrears, these partaking of the nature of the principal. V. OF THE INCIDENTS TO ESTATES IN JOINT-TENANCY, . MAY RESPECTIVELY EXERCISE OVER THEM. UPON the principle of a thorough and intimate union of interests and possession, which subsists between jointtenants, depend many consequences and incidents to the joint-tenant's estate. Thus, if there be two or more joint-tenants, and one release his interest to the other, such release will pass a fee without the word heirs, because it refers to the whole fee which they jointly took and are possessed of by force of the original conveyancej. But it is not so of tenants in common, who cannot thus release to each other, because a release supposes the party releasing to have the entire thing in demand; but tenants in common have several and distinct freeholds, they cannot therefore transfer their interests otherwise than as persons solely seised *. Also, if land be given jointly to two, upon condition that they shall not alien, and one of them release to the other, JOINTTENANCY. JOINTTENANCY. yet it is no breach of the condition, for this is not an alienation *. Again, if lands be given to A. and B. and the heirs of A.; B. in this case cannot surrender his estate to A. for though he is only joint-tenant for life with A. yet he is seised with him per mie et per tout1. If there be two joint-tenants of copyhold or other land holden by heriot service, and one die, no heriot is due from the other, because there is no change of tenant, the survivor continuing tenant of the whole land". From the like principle of a thorough and intimate union, which we have seen subsists between joint-tenants, it follows, that where there are joint-tenants or tenants in common of an advowson, they must regularly all join in the presentation; and therefore, if one joint-tenant, or tenant in common, present, or if they present severally, the ordinary may either admit, or refuse to admit, such a presentee at his pleasure, and if six months pass, he may consider it a lapse". If two joint-tenants make a lease by deed-poll, reserving rent to one of them only, yet it shall enure to them both; but if the lease be by indenture, the rent will be payable to him only to whom it is reserved; the reason of which difference is, that where the lease is by deed-poll, the rent follows the reversion, which is jointly in both the lessors, and that, not only because rent is by law properly incident to the reversion of land demised, but because the rent being by way of retribution for the profits of the land, the joint-tenant to whom it is reserved is considered as being seised of it in the same manner as he is of the land itself, which is equally for the benefit of his companion as of himself; but where the lease is by indenture, the lessors are estopped to claim the rent in any other manner than that in which it is reserved by the deed, for an indenture * Winch. 3 Raym. 413. 152. Butler v. Archer, Owen, n Co. Lit. 186, b. is the deed of both parties, and no man shall be allowed to recede from or vary his own solemn act°. But if two tenants in common of lands join in a lease for years, by indenture, of their several lands, this shall be the lease of each for his own part only; and the cross confirmation of the other, and no estoppel on the part of either; because, in this case, an actual interest passes from each of them, which excludes the necessity of an estoppel, which is never admitted, if, by any construction, it can be avoided, it being one of those things which the law looks upon as odious, as being calculated to conceal the truth P. If there be two joint-tenants, the one for life, and the other in fee, and they both join in a lease for life or gift in tail, reserving a rent, the rent will enure to them both, because of their joint reversion, for if the particular estate determine, they will be joint-tenants again in possession (1). So if the lessee of two joint-tenants surrender (2) his interest to one of them, it will enure to them both, because of their joint reversion'. But though joint-tenants are seised per mie et per tout, yet, to many purposes, they have each a right to a moiety (1) But yet, if tenant for life and he in reversion join in a lease for life, or gift in tail by deed, reserving a rent, this shall enure to the tenant for life only during his life, and afterwards to him in reversion, as every one is presumed to grant that which he lawfully may grant; and if at common law they had made a feoffment in fee generally, the feoffee would have held in like manner, i. e. of the tenant for life during his life, and afterwards of him in reversion. Co. Lit. 214, a. (2) But if such lessee grant his estate to one of them, it will enure to the grantee only; because his companion's moiety is in esse in the grantee with reversion to the other in fee. Co. Lit. 192, b. JOINTTENANCY. JOINT TENANCY. only, as to enfeoff, give or devise, or to forfeit or lose by default in a præcipe, &c. and therefore, if there are two or more joint-tenants, and they all join in a feoffment, each of them, in judgment of law, enfeoffs but his part. So again, if two joint-tenants make a feoffment in fee, a gift in tail, a lease for life, &c. upon condition, with a proviso that it shall be lawful (in case of a breach) for one of them to enter into the whole, yet he shall enter into but a moiety, because no more, in judgment of law, passed from him'. But in some cases the acts of one of the joint-tenants will be of equal force as if done by both. With respect to which the rule is, that every act done by one joint-tenant, for the benefit of himself and his co-tenant, shall be effective as to both, but that if it be to the prejudice of the other, it shall not bind him". The possession and seisin of one tenant in common, is also the possession and seisin of the other; this not being adverse to the right of the other, but in support of their common title", unless accompanied with a denial of the other's title, or afterwards held adversely to his estate*. And this shall not be presumed merely by a perception of the profits by one', unless for a series of years (as thirty-six) without any claim by the other; in which case the jury will be left to presume an ouster of his co-tenant under circumstances". Thus, if two joint-tenants be disseised, and one enters, this is in law the entry of both. And so in other cases, • Co. Lit, 186, a. "Bridgm. Rep. 129. * Sterling v. Penlington, Fairclaim v. Shackleton, 5 Burr. 2604; Peaceable v. Z Doe v. Prosser, Cowp. Bridgm. Rep. 129. |