JOINTTENANCY. But where there was a devise to three persons to hold as joint-tenants, and the survivors and survivor of them, he does not part with continues in him; that in this case, there is something undisposed of, viz. the intermediate estate, till, by the death of one of the parties, the remainder vests, and is executed in the survivor; that therefore this intermediate estate continues in the grantor, as part of his old reversion: that if a remainder is limited on a contingency, and the contingency fails, the donor has the land again: that this is called his possibility of reverter; and that this possibility of reverter is, in fact, nothing but his old reversion. Besides, the law never supposes the fee to be in abeyance, unless where it is necessary to recur to that construction, for preserving some estate or right. But, in the present case, no such necessity exists. The cases of Carter v. Barnardiston, 1 P. Wms. 505; Purefoy v. Rogers, 2 Saund. 380, and many other cases of authority, strongly favour this latter opinion. The same reasoning goes to prove, that, where there is a devise to the effect in question, the reversion in fee, during the suspence of the contingency, descends on the heir at law. As to the question, whether the contingent remainder, in this case, can be conveyed? it may be observed, that, supposing the reversion remains in the donor, if he and the donees join together in a common conveyance, by lease and release, or bargain and sale, the estate for life of the donees will merge in the reversion, the contingent remainder be destroyed, and the fee effectually conveyed to the purchaser. It will be the same, in the case of a devise to this effect, if the heir at law and the devisees in trust join in the conveyance. But supposing the fee to be in abeyance; or, admitting it to remain in the donor; or, in case of a will, to descend on the heir, and supposing him not to join; Lord Talbot, by what he is reported to have said in the case of Vick v. Edwards, seems to have thought, that the trustees joining in a fine might still pass a good title to a purchaser. Co. Lit. 191, a. n. (1). But this doctrine is open to objection. See Mr. Fearne's Essay on Contingent Remainders, 283. Perhaps the liberality of succeeding times may think a common conveyance, by lease and release, or bargain and sale, sufficient in these cases to pass the fee, without either a fine or recovery. See Co. Lit. ub. sup. But a material objection to taking the conveyance by fine from the trustees, lies in those cases where the heir at law is not a party. For, if the trustees are supposed to be and the heirs and assigns of such survivor for ever, it was holden to be a joint-tenancy in fee'. If an estate be limited to husband and wife, and the heirs of their bodies, and they are divorced a vinculo matrimonii, they become only tenants for life, because they shall not be presumed to intermarry after they are once legally divorced by church censures'. So if lands be given to a man and his mother, and the heirs of their bodies begotten, they have but a joint estate for life, but in this case the mother and son have several inheritances". And in all the cases above-mentioned, where the inheritances are joint, the reversion dependent thereupon will be joint also; and so too where the inheritance is several, the reversion depending thereon will be several also; and if any of the grantees die without issue, the grantor shall, after the death of all the donees, enter into a moiety or third part, as the case may be". But though the inheritance be several, yet if the reversion be granted to two or more persons, and their heirs, they will be joint-tenants of the reversion; and so it is of a remainder; and therefore, if lands be given to two men, JOINT TENANCY. t 1 3 H. 6, 48. be joint-tenants for life, with a contingeut remainder in fee to the survivor, their fine may be supposed to be a forfeiture of their own estate, to be a destruction of the contingent remainder to the survivor, and to give the heir an immediate right of entry. To prevent this, it has been advised, that the trustee should demise the estate to the purchaser, or to a trustee for him, for a long term of years; and that each trustee should covenant, that if he should be the survivor, he will convey the fee and to have that agreement established by a decree of the Court of Chancery. If there are outstanding terms, they should be assigned to a trustee for the purchaser. Ibid. Sed vide Fearne Cont. Rem. 283, 522. TENANCY. JOINT- and the heirs of their bodies begotten, remainder to them and their heirs, they will be joint-tenants for life, tenants in common of the estate-tail, and joint-tenants of the feesimple in remainder, for they are joint purchasers of the fee-simple, and the remainder in fee is a new created estate; but the reversion remaining in the grantor, or his heirs, is a part of his ancient fee-simple". How an estate in joint-tenancy ed. VI. BY WHAT MEANS ESTATES IN JOINT-TENANCY, AN estate in joint-tenancy may be severed or destroyed, or in common, by destroying any of its constituent unities. That of time, may be dissolv- which respects only the original commencement of the joint estate, cannot indeed (being now past) be affected by any subsequent transaction. But the joint-tenants estate may be destroyed, without any alienation, by merely disuniting their possession. For joint-tenants being seised per mie et per tout, every thing that tends to narrow that interest, so that they shall not be seised throughout the whole, and throughout every part, is a severance or destruction of the jointure. And, therefore, if two jointtenants agree to part their lands, and hold them in severalty, they are no longer joint-tenants; for they have now no joint interest in the whole, but only a several interest respectively in several parts. And for that reason also, the right of survivorship is by such separation destroyed2. The jointure may be destroyed by destroying the unity of title; as if one joint-tenant aliens and conveys his estate to a third person: here the joint-tenancy is severed, and turned into tenancy in common ; for the grantee, and the remaining joint-tenant, hold by different titles, (one derived from the original, the other from the subsequent grantor,) though, till partition made, the unity of possession con y Co. Lit. 183, b. 184, a. 299, b. z Co. Lit. 188, 193. tinues (1). It may also be destroyed, by destroying the unity of interest, whether by act of either of the parties, or by operation of law. And, therefore, if there be two joint-tenants for life, and the inheritance is purchased by, or descends upon either, it is severance of the jointure . Though, if an estate is originally limited to two for life, and after to the heirs of one of them, the freehold shall remain in jointure, without merging in the inheritance; because, being created by one and the same conveyance, they are not separate estates, (which is requisite in order to a merger) but branches of one entire estated. In like manner, if a joint-tenant in fee makes a lease for life of his share, this defeats the jointure, for it destroys the unity both of title and interest. And whenever, or by whatever means the jointure ceases, or is severed, the right of survivorship, or jus accrescendi, the same instant ceases with it, and nihil de re accrescit ei qui nihil in re quando jus accresceret habit. Yet, if one of three joint-tenants aliens his share, the two remaining tenants still hold their parts by joint-tenancy and survivorship. And if one of three joint-tenants releases his share to one of his companions, though the joint-tenancy is destroyed with regard to that part, yet the two remaining parts are still held in jointure, for they still preserve their original constituent unities. But when, by any act or event, different interests are created in the several parts of the estate, or they are held by different titles, or if merely the possession is separated, so that the b 1 Inst. 182, b. • Cro. Eliz. 170. e Lit. s. 302, 3o3. f Ibid. s. 294. 8 Ibid. S. 304. (1) But yet a devise of one's share by will, is no severance of the jointure; for no testament takes effect till after the death of the testator, and by such death the right of the survivor (which accrued at the original creation of the estate, and has, therefore, a priority to the other; Lit. s. 287) is already vested, and jus accrescendi præfertur ultimæ voluntati. Lit. s. 287; Co. Lit. 185; 2 Blac. Com. 186. JOINTTENANCY. JOINTTENANCY. Severance by alienation. tenants have no longer these four indispensable properties, a sameness of interest, and undivided possession, a title vested at one and the same time, and by one and the same act or grant, the jointure is instantly dissolved. But estates in common can be dissolved only two ways: 1. By uniting all the titles and interests in one tenant, by purchase or otherwise, which brings the whole to one severalty: 2. By making partition between the several tenants in common, which gives them all respective severalties. For, indeed, tenancies in common differ in nothing from sole estates, but merely in the blending and unity of possession. These positions I shall endeavour further to illustrate by considering, 1. What disposition or conveyance by one joint-tenant, or tenant in common, with his companion, will work a severance: 2. What disposition with a stranger will effect a severance: 3. At what time such disposition must take place. 1. What Disposition of a Joint-tenant, or Tenant in Common, disuniting with his Companion, will work a Severance by the Title. A partition, or severance, between joint-tenants of a freehold, must always, even before the statute of frauds, 29 Car. 2, c. 3, have been by deed, because, as the jointtenants took the land by the notoriety of investiture, a like solemnity was requisite to defeat their estate. But tenants in common of a freehold might (as it is said they still may) make a partition without deed, for a partition between tenants in common is no more than a setting out their respective moieties, by metes and bounds, according to the first investiture. As might also joint-tenants of an estate for years, make partition without deed. And the Co. Lit. 169, a; 1 Atk. 542; 1 Vern. 472. 2 Rol. Abr. 255; Co. Lit. 169, a; and see acc. 1 Atk. 542; and 1 Vern. 472. * Co. Lit. 187, a. |