of his father's blood, and not to his heirs general, as a remainder limited to him by a third person would have done: (w) for it is the old estate, which was originally in him, and never yet was out of him. And so likewise, if a man grants a lease for life to A., reserving rent, with reversion to B. and his heirs, B. hath a remainder descendible to his heirs general, and not a reversion to which the rent is incident; but the grantor shall be entitled to the rent, during the continuance of A.'s estate. (x)

*177] *In order to assist such persons as have any estate in remainder, reversion, or expectancy, after the death of others, against fraudulent concealments of their death, it is enacted by the statute 6 Anne, c. 18, that all persons on whose lives any lands or tenements are holden, shall, (upon application to the court of chancery, and order made thereupon), once in every year, if required, be produced to the court, or its commissioners, or, upon neglect or refusal, they shall be taken to be actually dead, and the person entitled to such expectant estate may enter upon and hold the lands and tenements, till the party shall appear to be living.

Before we conclude the doctrine of remainders and reversions, it may be proper to observe, that whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, (y) the less is immediately annihilated; or, in the law phrase, is said to be merged, (43) that is, sunk or drowned in the greater. Thus, if there be

(43) Even if there be an intermediate contingent estate, it will be destroyed by the union and coalition of the greater estate and the less, (unless the greater estate is subjoined to the less by the same conveyance,) when such coalition takes place by the conveyance or act of the parties. Purefoy v. Rogers, 2 Saund. 387. But the reports of adjudged cases apparently differ with respect to the destruction of an intermediate contingent estate, in cases where the greater estate becomes united to the less by descent. These differences, however, may be reconciled by distinguishing between those cases where the descent of the greater estate is immediate from the person by whose will the less estate, as well as the intermediate contingent estate, were limited, and the cases where the less estate and the contingent remainders were not created by the will of the ancestor from whom the greater estate immediately descends on the less estate. In the first set of cases, the descent of the greater estate does not merge and drown the intermediate contingent remainders, (Boothley v. Vernon, 9 Mod. 147. Plunkett v. Holmes, 1 Lev. 12. Archer's case, 1 Rep. 66;) in the second class of cases, it does merge them. Hartpole v. Kent, T. Jones, 77, S. C. 1 Ventr. 307. Hooker v. Hooker, Rep. temp. Hardw. 13. Doe v. Scudamore, 2 Bos. & Pull. 294; and see Fearne, p. 343, 6 ed., with Serjt. Williams's note to 2 Saund. 382, a.

A distinction (as already has been intimated) must be made between the cases where a particular estate is limited, with a contingent remainder over, and afterwards the inheritance is subjoined to the particular estate by the same conveyance, and those cases wherein the accession of the inheritance is by a conveyance, accident, or circumstance distinct from that conveyance which created the particular estate. In the latter cases, we have seen, the contingent remainder is generally destroyed; in the former it is otherwise. For where by the same conveyance a particular estate is first limited to a person, with a contingent remainder over to another, and with such a reversion or remainder to the first person as would in its own nature drown the particular estate first given him, this last limitation shall be considered as executed only sub modo; that is, upon such condition as to open and separate itself from the first estate when the condition happens; and by no means to destroy the contingent estate. Lewis Bowles's case, II Rep. 80. Fearne, 346, 6 ed.

A court of equity will in some cases relieve against the merger of a term, and make it answer the purposes for which it was created. Thus, in Powell v. Morgan, 2 Vern. 90, a portion was directed to be raised out of a term for years for the testator's daughter. The fee afterwards descended on her, and she, being under age, devised the portion. The court of chancery relieved against the merger of the term, and decreed the portion to go according to the will of the daughter. See also Thomas v. Kemish, 2 Freem. 208. S. C. 2 Vern. 352. Saunders v. Bournford, Finch, 424.—CHITTY.

"If any principle of law seems to be well settled, it may now be said that in all cases

tenant for years, and the reversion in fee-simple descends to or is purchased by him, the term of years is merged in the inheritance, and shall never exist any more. But they must come to one and the same person in one and the same right; else, if the freehold be in his own right, and he has a term in right of another, (en auter droit,) there is no merger. (44) Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge; for he hath the fee in his own right, and the term of years in the right of the testator, and subject to his debts and legacies. So also, if he who hath the reversion in fee marries the tenant for years, there is no merger; for he hath the inheritance in his own right, the lease in the right of his wife. (z) (45) An estate-tail is an exception to this rule: for a man may have in his own right both an estate-tail and a reversion in fee: and the estate-tail, though a less estate, shall not merge in the fee. (a) For estates-tail are protected and preserved from merger by the operation and con- [*178 struction, though not by 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. (b) 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 destroy it, and now can only do it by certain special modes, by a fine, a recovery, and the like:(c) 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 in the fee.

(z) Plowd. 418. Cro. Jac. 275. Co. Litt. 338. (a) 2 Rep. 61. 8 Rep. 74.

(b) Cro. Eliz. 302.
(c) See page 116.

when intervening rights interfere, or when the two estates meet and it is necessary that the charge be kept on foot to protect these interests, the courts will not enforce a merger.' Miller v. Finn, í Nebr. 298 (1879). Warnock v. Wightman, 1 Brevard (S. C.) 283 (1802). Boykin v. Ancrum, 28 S. C. (1887). Magruder v. Stewart's Admr., 4 Howard (Miss.) 212 (1840). St. Philip's Church v. Zion Pres. Ch., 23 S. C. 307 (1885). Fox v. Long, 8 Ky. 555 (1871). Clift v. White, 2 Kernan (N. Y.) 527, 529 (1884). Rake v. Lawshee, 4 Zabr. (N. J.) 517 (1854). Holcomb v. Lake, 4 Zabr. (N. J.) 693, 494 (1855). Clift v. White, 15 Barbour (N. Y.) 75, 77 (1853). Mangum v. Pieslir, 16 S. C. 330 (1881). Allen v. Anderson, 44 Ind. 398 (1873). 6 Lawson, Property Rights, s. 2715 (1890). Tiedeman, Real Prop. 46 (2 ed. 1892). Washburn on Real Prop. 123 (5 ed. 1887). I Schouler's Pers. Prop. 6. 38, p. 43 (1884). Landlord and Tenant in Penn. 219 (1884). Wood, Landlord and Tenant, 853 (1 ed. 1884). Goodeve's Mod. Law of R. P. (3 ed.) 222. Willard on R. E. and Conv. 92, 297, 308. Williams on R. P. (6 ed.) 280. 2 Story on Contracts, (5 ed.)

450.

(44) Mr. Preston questions this position. 3 Conv. 277.-SHARSWOOD.

(45) By the judicature act of 1873, 36 and 37 Vict. c. 66, it is enacted:-"There shall not after the commencement of this act" (1st November, 1875) "be any merger by operation of law only of any estate, the beneficial interest of which would not be deemed to be merged or extinguished in equity." Goodeve's Mod. Law of R. P. (3 ed.) 155.

CHAPTER XII.

OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND

COMMON.

WE WE come now to treat of estates, with respect to the number and connections of their owners, the tenants who occupy and hold them. And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or expectancy, may be held in four different ways; in severalty, in joint-tenancy, in coparcenary, and in common. (1)

I. He that holds lands or tenements in severalty, or is 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.

*180] *II. An estate in joint-tenancy is where lands or tenements are granted to two or more persons, to hold in fee-simple, fee-tail, for life, for years, or at will. (2) In consequence of such grants an estate is called an estate in joint-tenancy, (a) and sometimes an estate in jointure, which word as well as the other signifies a 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. 19, is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman's dower. (b)

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. (3) Now, if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, (4) as if an (a) Litt. 277.

(b) See page 137.

(1) This is not true as to coparcenary. See post, p. 188.-COLERIDGE.

Ì Cord, Married Women, 195 (2 ed. 1885). Story, Partnership, 623 (7 ed. 1881). Freeman Cotenancy and Partition.

(2) Freeman on Cotenancy and Partition (2 ed.) sec. 9 and 16. Boone on Real Property, sec. 349. Rights, Remedies and Practice. Lawson, vol. 6, p. 2719. Atwood v. Kittell, 2 Fed. Cases, 199 (1878). Angell Limitations, 438 (6 ed. 1876). Tiedeman on Real Property, 195 (2 ed. 1892). I Schouler Pers. Property, 154 (2 ed. 1884). Boone Real Property, 407-110.

(3) McKinney v. Stocks, 6 Tenn. (Heiskell) 284, 286. Boone on Real Property, sec. 350. Rights, Remedies and Practice. Lawson, vol. 6, p. 2719.

(4) For if an estate in fee be given to A. and B. and to the survivor of them and to the heirs of such survivor, they are not joint-tenants in fee. They have only a joint-estate of freehold during their joint lives, with a contingent remainder in fee to the survivor. Yet

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. (6) For,

2. The properties of a joint-estate are derived from its 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

in the creation of an estate for life it is otherwise; for when an estate is given to A. and B. and to the survivor of them, this is a joint-tenancy for life, and the words " survivor of them are but surplusage. See further upon this subject, Co. Litt. 191, a., n. 1.—ARCH

BOLD.

Joint-tenancy is at this day so far from being favored, that the courts think themselves justified in exercising their ingenuity against it. In most instances it operates contrary to the opinion and intent of the parties. Even in deeds, therefore, the inconvenience of joint-tenancy has induced the courts to seize on any expression which indicates an intention to give a separate interest to each. Galbraith v. Galbraith, 3 S. & R. 392. Bambaugh v. Bambaugh, 11 S. & R. 191.

Independently of the words creating the estate, there certainly are cases in which equity will consider joint-tenants as tenants in common; and one of these cases is where a purchase of land is made by two persons with a view of expending large sums in the improvement of it. Duncan v. Forrer, 6 Binn. 193.-SHARSWOOD.

In a

(6) Joint-tenancies are now regarded with so little favor, both in courts of law and equity, that whenever the expressions will import an intention in favor of a tenancy in common, it will be given effect to. Fisher v. Wigg, 1 P. Wms. 14 n., and id. I Ld. Raym. 622. I Salk. 392, note 8. Lord Cowper says that a joint-tenancy is in equity an odious thing. I Salk. 158. See also 2 Ves. Sen. 258. In wills the expressions "equally to be divided, share and share alike, respectively between and amongst them," have been held to create a tenancy in common. 2 Atk. 121. 4 Bro. 15. The words equally to be divided make a tenancy in common in surrenders of copyholds, (1 Salk. 301. 2 Salk. 620,) and also in deeds which derive their operation from the statute of uses, (1 P. Wms. 14. I Wils. 341. Cowp. 660. 2 Ves. Sen. 257;) and though lord Holt and lord Hardwicke seem to be of opinion that these words in a common-law conveyance are not sufficient to create a tenancy in common, (same cases, and 1 Ves. Sen. 165. 2 Ves. Sen. 257; and see Bac. Abr. Joint-Tenants, F.,) yet from the notes to some of those cases, and 4 Cruise Dig. I ed. 455 to 459. 2 Bla. C. 193, 194, Mr. Christian's note, it may be collected that the same words in a common-law conveyance would now create a tenancy in common. joint-tenancy for life to A. and B., the words and the survivor of them are merely words of surplusage, as without them the lands upon the death of one joint-tenant go to the survivor. But in the creation of a joint-tenancy in fee particular care must be taken not to insert these words. For the grant of an estate to two and the survivor of them, and the heirs of the survivor, does not make them joint-tenants in fee, but gives them an estate of freehold during their joint lives, with a contingent remainder in fee to the survivor. Harg. & Butl. Co. Litt. 191, a., n. I. Where there was a devise to three sisters for and during their joint lives and the life of the survivor, to take as tenants in common, and not as joint-tenants, remainder to trustees during the respective lives of the sisters, and the life of the survivor, to preserve contingent remainders, and from and after their respective deceases and the decease of the survivor, remainder over; it was held that the sisters took the estate as joint-tenants, to be regulated in its enjoyment as a tenancy in common, or as tenants in common, with benefit of survivorship. 1 M. & S. 428. Where testator devised the residue of his property to his daughters as tenants in common, and afterwards made a codicil expressly for a particular purpose, but thereby also re-devised the residue to his daughters, omitting the words of severance, the codicil was construed by the will, and they took as tenants in common. 3 Anstr. 727. Where the devise was to the use and behoof of the testator's niece A. and his nieces B. and C., and the survivor and survivors of them, and the heirs of the body of such survivors, as tenants in common and not as joint-tenants, it was held that under this devise A., B., and C. took as tenants in common. I New Rep. 82. When two or more purchase lands and pay in equal proportions, a conveyance being made to them and their heirs, this is a joint-tenancy. But if they advance the money in unequal proportions, they are considered in equity in the nature of partners; and if one of them die, the others have not his share by survivorship, but are considered trustees for the deceased representative. 1 Eq. Ca. Abr. 291.

CHITTY.

A conveyance to husband and wife and the survivor of them in his or her own right does not create a joint-tenancy, because there is not a unity of interest. By the death 645

BOOK. II.-12.

same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided posses

sion. (7) *181] *First, they must have one and the same interest. (8) One jointtenant 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 years; one cannot be tenant in fee, and the other in tail. (c) But if land be limited to A. and B. for their lives, this makes them jointtenants of the freehold; if to A. and B. and their heirs, it makes them jointtenants of the inheritence. (d) (9) 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:(10) 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 (c) Co. Litt. 188. (d) Litt. 277.

the one first dying takes only a life estate while the survivor takes a fee. Nuttel v. Karl, 133 Ill. (Freeman) 68 (1891).

(7) Brantley's Pers. Prop. sec. IOI. 1 Barb. Pers. & Prop. 540. Tiedeman on Real Property, 2 ed. pp. 195, 196. Freeman on Cotenancy and Partition, 2 ed. ? II. Challis' Law of Real Property, 2 ed. p. 335. The Law of Real Property, Boone, p. 410, % 351. Newell on Ejectment, p. 136 (1892). Willard on Real Estate and Conveyancing, 2 ed. p. 178. Story on Partnership, 7 ed. p. 126. A partnership does not arise from the community of interest created by a joint tenancy under devises, deeds, donations, etc., because such interests are not strictly founded in contract. Story on Partnership, 7 ed. p. 3. Rights, Remedies and Practice, Lawson, vol. 6, p. 2719. 5 Hawaiian Reports, 493.

(8) But two persons may have an estate in joint-tenancy for their lives, and yet have several inheritances. Litt. sect. 283, 284. I Inst. 184, a. Cook v. Cook, 2 Vern. 545. Cray v. Willis, 2 P. Wms. 530. This is the case where an estate is granted in jointtenancy to persons and the heirs of their bodies, which persons cannot intermarry. See post, p. 192. But in this case there is no division between the estate for lives and the several inheritances, and the joint-tenants cannot convey away their inheritances after their decease. See post, note 7. The estate for lives and the inheritance are divided only in supposition and consideration of law, and to some purposes the inheritance is executed. I Inst. 182, b.—CHITTY.

See Freeman on Cotenancy and Partition, 2 ed. ¿ 11. Williams on Real Property, 6 ed. 110.

(9) Lord Coke says that if a rent-charge of 10l. be granted to A. and B., to have and to hold to them to, viz., to A. till he be married, and to B. till he be advanced to a benefice, they are joint-tenants in the mean time, notwithstanding the limitations; and if A. die before marriage, the rent shall survive to B.; but if A. had married, the rent should have ceased for a moiety, et sic e converso [And so conversely], on the other side. Co. Litt. 180, b. 2 Cruise Digest, 498.-CHITTY.

See Goodeve's Modern Law of Real Property, 3 ed. (1891).

Elphinstone & Clark, p. 245

(10) Lord Coke observes, "When land is given to two, and to the heirs of one of them, he in the remainder cannot grant away his fee-simple, as hath been said." I Inst. 184, b.; and see ante, note 5. Mr. Hargrave, in his note upon this passage, remarks that there is a seeming difficulty in it; but he conceives lord Coke's meaning to be, that, though for some purposes the estate for life of the joint-tenant having the fee is distinct from, and unmerged in, his greater estate, yet for granting it is not so, but both estates are in that respect consolidated, notwithstanding the estate of the other joint-tenant; and therefore that the fee cannot, in strictness of law, be granted as a remainder, eo nomine [By name], and as an interest distinct from the estate for life. See the last note. But lord Coke never meant that the joint-tenant having the fee could not in any form pass away the fee subject to the estate of the other joint-tenant: that would be a doctrine not only contrary to the power of alienation necessarily incident to a fee-simple, but would be inconsistent with lord Coke's own statement in another part of his commentary. See Co. Litt. 367, b. The true signification of the passage cited at the commencement of this note may be illustrated by what the same great lawyer lays down in Wiscot's case, (2 Rep. 61, a.,) namely, that when an estate is made to several persons, and to the heirs of one of them, he who hath the fee cannot grant over his remainder and continue in himself an estate for life.-CHITTY.