JOINTTENANCY. At what time disposition must take effect to work a sever ance. Nor will a covenant or agreement by an infant, being a voidable act, operate as a severance, even though made in consideration of marriage ". 3. At what Time such Disposition must take Effect. Regularly every disposition of one joint-tenant to work a severance, and bind his companion, must be a present and immediate disposition; for the surviving joint-tenant, claiming the whole by virtue of the original investiture or donation, the part of his deceased companion will necessarily descend to him at the instant of his decease, unless it has been disposed of by such his companion, during his life-time". But if there are two joint-tenants in fee, and one of them let his moiety to another for a term of years to commence after his death, this will be good, and be binding upon the other, though he survive, for this is a present and immediate disposition, though not to take effect in possession till a future period, and therefore binds the land from the time of making the lease °. If, however, one of two joint-tenants devises away his part, either for years or otherwise, and dies, this will not bind his companion, not only because this is no present disposition, it not being binding upon the devisor himself, but because the devise does not take effect till after the death of the devisor, and then the surviving joint-tenant takes the whole by a prior title; viz. from the original grant, et jus accrescendi præfertur ultima voluntati (1); but in this case, if the devisor survive the other joint (1) But it is otherwise of coparceners, for as there is no survivorship between them, the part of each is descendible, and consequently devisable. See post. tenant, the devise is good, not for the part of the devisor alone, but for the whole, because he being the surviving joint-tenant has the whole by survivorship, and then the words of the will are sufficient to comprise the whole estate, and though at the time of making the will he was not sole tenant, yet he was seised, per mie et per tout, and it is impossible to fix upon any particular part which he meant to devise, because he could not then call one part of the land his own more than another P. But if there are two joint-tenants, and one of them surrenders his moiety to the use of his last will, and dies before the surrender is presented, having made his will, this is a severance of the jointure, and binds his companion, for after presentment, it relates to the time of the first surrender 9. And if one joint-tenant bargains and sells his moiety, and dies before the deed is enrolled, yet the deed being afterwards enrolled, will work a severance ab initio, and support by relation the interest of the bargainee'. But if one joint-tenant bargains and sells the whole land, and before enrolment the other dies, the part of the deceased joint-tenant will accrue to the survivor, because the freehold not being out of him, for want of enrolment, the jointure remains entire; and though the deed be afterwards enrolled, yet a moiety only will pass, for the enrolment cannot, by relation, make the grant more efficacious than it would have been had it taken effect immediately'. And a recovery had against one joint-tenant will sever the jointure, and the survivor cannot avoid the recovery, although such joint-tenant die before execution; because P Lit. s. 287; Co. Lit. 185, b; Perk. s. 500; Cro. Jac. 106; Moor, 776, pl. 1074; 2 Rol. Abr. 848. Co. Lit. 59, b; 1 Rol. Co. Lit. 186, a. JOINTTENANCY. JOINTTENANCY. Severance by operation of law. the moiety of the deceased joint-tenant was bound in his life-time'. 4. Of Severance by Operation of Law. Whenever, 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 the possession merely is separated so that the tenants have no longer the four indispensable properties, before noticed, i. e. a sameness of interest, an undivided possession, a title vesting at one and the same time, and by one and the same act or grant, the jointure is instantly dissolved". If, therefore, a man, having issue three sons, devise lands to his two youngest sons, to hold to them jointly for their lives, and the eldest son dies, by which the reversion in fee of the lands descends to the second son, this, by operation of law, is a severance of the joint-tenancy*. And so if there be three joint-tenants for life, and the reversion is granted to one of them, the jointure is severed as to the third part of him to whom the reversion is so granted, because the unity of interest is thereby destroyed by the merger of the freehold in the inheritance. And so if a lease be made to two for their lives, and the lessor afterwards grants the reversion to them and the heirs of their bodies, the jointure is severed, and they are tenants in common in possession (1). 60, b; Co. Lit. 182, b, S. P.; (1) But it is to be remarked, that where an estate is originally limited to two for life, and after to the heirs of one of them, the freehold will remain in jointure without merging in the inheritance, because, being created by one and the same conveyance, they are not separate and distinct estates, (which is necessary, in order that the one may merge in the other) but branches of one entire estate. 5. Of Severance by Compulsion of Law. JOINTTENANCY. At common law, joint-tenants and tenants in common of severance by compulsion of were not compellable to make partition, except by the law. custom of some cities and boroughs. For this being an estate originally created by the act and agreement of the parties, the law would not permit any one or more of them to destroy the united possession without a similar universal consent (1); but now, by statute 31 H. 8, c. 1, and 32 ib. c. 32, both joint-tenants and tenants in common are compellable to divide their lands at the instance of either of the parties. The mode of doing which may be, either by writ de partitione facienda at law, or bill and subpana in equity. The latter mode is, however, more usually had recourse to, as a more speedy and easy process, where the title of the parties turns out to be in any degree complicated and binding on parties in remainder, who would not be bound by a judgment at law. But it is discretionary in the court to take cognizance of the matter, or not, where all parties are legally interested, and the partition might be effectually made at law (2). And even though one of the tenants be an infant, a par Lit. s. 290, 318; Co. Lit. 187, a. b See Co.Lit. 169, a, n. (2). с Cartwright v. Pultney, 2 Atk. 380. (1) Thus by the civil law, nemo invitus compellitur ad communionem. Ff. 12, 6, 76, s. 4. And again, si non omnes qui rem communem habent, sed certi ex his, dividere desiderant ; hoc judicium inter eos accipi potest. Ff. 10, 3, 8. (2) The mode the court usually pursues is to issue a commission to persons named for the purpose, who make a return to the court of the partition they have judged reasonable, which if approved by the court, (after hearing the parties interested, if desired) decrees a performance, by ordering the parties to execute proper assurances to each other. See Calmady v. Calmady, 2 Ves. jun. 568. JOINTTENANCY. tition will be decreed, and an immediate conveyance ordered to be executedd. Lastly, commissions under inclosure acts, are now, by 41 Geo. 3, c. 109, s. 16, authorized to be issued, at the request of joint-tenants, tenants in common, or coparceners, (or of the husbands, guardians, trustees, committees, or attornies of persons under coverture, minors, lunatics, or under any other disability, or absent abroad), to make partition of their estates, and allot them to the parties in severalty. CHAP. VIII. OF AN ESTATE IN COPARCENARY. COPARCE IN treating of this estate, I shall inquire into, NARY. I. THE NATURE AND DIFFERENT KINDS OF ESTATES II. THE MEANS BY WHICH THIS ESTATE MAY BE CREATED OR ARISE. III. THE INCIDENTS BELONGING TO IT. IV. How IT MAY BE DESTROYED; AND OF THE I. THE NATURE OF AN ESTATE IN COPARCENARY. AN estate is said to be holden iu coparcenary, where lands of inheritance descend to two or more persons as co-heirs to their ancestor, who are then called parceners. And they are so called, says Littleton, because they are compellable to make partition by the writ de participatione d Baring v. Nash, 1 Ves. & Bea. 551. • See Watk. Princ. 44. |