and incidents to the joint-tenant's estate. If two joint-tenants let a verbal lease of their land, reserving rent to be paid to one of them, it shall enure to both, in respect of the joint reversion. If their lessee surrenders his lease to one of them, it shall also enure to both, because of the privity, or relation of their estate m ̧ On the same reason, livery of seisin, made to one joint-tenant, shall 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 o. In all actions also relating to their joint-estate, one joint-tenant cannot sue or be sued without joining the other P. But if two or more jointtenants be seised of an advowson, and they present different clerks, the bishop may refuse to admit either: because neither joint-tenant hath a several right of patronage, but each is seised of the whole: and, if they do not both [183] agree within six months, the right of presentation shall lapse. But the ordinary may, if he pleases, admit a clerk presented by either, for the good of the church, that divine. service may be regularly performed; which is no more than he otherwise would be entitled to do, in case their disagreement continued, so as to incur a lapse: and, if the clerk of one joint-tenant be so admitted, this shall keep up the title in both of them; in respect of the privity and union of their estate. Upon the same ground it is held, that one jointtenant cannot have an action against another for trespass, in respect of his land; for each has an equal right to enter on 1 Co. Litt. 214. m Ibid. 192. n Ibid. 49. o Ibid. 319. 354. p Ibid. 195. q Ibid. 185. r 3 Leon. 262. and the third person the other moiety, in the same manner as if it had been granted only to two persons. So if the grant is to husband and wife and two others, the husband and wife take one third in jointtenancy. Litt. sec. 291. 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 estate of the other; as to let leases, or to grant copyholdss: and, if any waste be done, which tends to the destruction of the inheritance, one joint-tenant may have an action of waste against the other, by construction of the statute Westm. 2. c. 22. So too, though at common law no action of account lay for one joint-tenant against another, unless he had constituted 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 share of the profits of the tenements held in joint-tenancy (2). FROM the same principle also arises the remaining grand incident of joint estates; viz. the doctrine of survivorship: by which when two or more persons are seised of a joint estate, of inheritance, for their own lives, or pur auter vie, or are jointly possessed of any chattel interest, the entire tenancy upon the decease of any of them remains to the survivors, and at length to the last survivor; and he shall be entitled to the whole estate, whatever it be, whether an inheritance or a common freehold only, or even a less estate w. This is the natural and regular consequence of the union and entirety of their interest. The interest of two joint[184] tenants is not only equal or similar, but also is one and the same. One has not originally a distinct moiety from the other; but, if by any subsequent act (as by s 1 Leon. 234. t 2 Inst. 403. u Co. Litt. 200. (2) This action is now perhaps never brought; but the practice is to apply to a court of equity to compel an account; which is also the jurisdiction generally resorted to, in order to obtain a partition between joint-tenants, parcenors, and tenants in common. Com. Dig. Chanc. 3 V. 6. & 4 E. Mif. 109. alienation or forfeiture of either) the interest becomes separate and distinct, the joint-tenancy instantly ceases. But, while it continues, each of two joint-tenants has a con current interest in the whole; and therefore, on the death of his companion, the sole interest in the whole remains to the survivor. For the interest which the survivor originally had is clearly not devested by the death of his companion; and no other person can now claim to have a joint estate with him, for no one can now have an interest in the whole, accruing by the same title, and taking effect at the same time with his own; neither can any one claim a separate interest in any part of the tenements; for that would be to deprive the survivor of the right which he has in all, and every part. As therefore the survivor's original interest in the whole still remains; and as no one can now be admitted, either jointly or severally, to any share with him therein; it follows, that his own interest must now be entire and seve ral, and that he shall alone be entitled to the whole estate (whatever it be) that was created by the original grant. THIS right of survivorship is called by our ancient authors* the jus accrescendi, because the right, upon the death of one joint-tenant, accumulates and increases to the survivors; or, as they themselves express it, "pars illa commu"nis accrescit superstitibus, de persona in personam, usque "ad ultimam superstitem." And this jus accrescendi ought to be mutual; which I apprehend to be one reason why neither the kingy, nor any corporation 2, can be a joint-tenant with a private person. For here is no mutuality: the private person has not even the remotest chance of being seised of the entirety, by benefit of survivorship; for the king and the corporation can never die (3). x Bracton. 1. 4. tr. 3. c. 9. sec. 3. Fleta. 1. 3. c. 4. y Co. Litt. 190. Finch. L. 83. (3) But lord Coke says expressly, "there may be joint-tenants, though there be not equal benefit of survivorship; as if a man let 3. WE are, lastly, to inquire how an estate in joint-tenancy may be severed and destroyed. And this may be done by destroying any of its constituent unities. 1. That of time, which respects only the original commencement of the joint-estate, cannot indeed (being now past) be affected by any subsequent transactions. But, 2. The joint-tenants' estate may be destroyed, without any alienation, by merely disuniting their possession. For joint-tenants being seised per my 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 joint-tenants 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 the several parts. And for that reason also, the right of survivorship is by such separation destroyed a. By common law all the jointtenants might agree to make partition of the lands, but one of them could not compel the other so to dob: 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. But now by the statutes 31 Hen. VIII. c. 1. "lands to A and B during the life of A; if B die, A shall have all by "survivorship; but if A die, B shall have nothing." Co. Litt. 181. The mutuality of survivorship does not therefore appear to be the reason why a corporation cannot be a joint-tenant with a private person; for two corporations cannot be joint-tenants together; but whenever a joint-estate is granted to them, they take as tenants in common. Co. Litt. 190. But there is no survivorship of a capital, or a stock in trade, among merchants and traders; for this would be ruinous to the family of the deceased partner; and it is a legal maxim, jus accrescendi inter mercatores pro beneficio commercii locum non habet. Co. Litt. 182. See p. 399. post. and 32 Hen. VIII. c. 32. joint-tenants, either of inheritances or other less estates, are compellable by writ of partition to divide their lands c. 3. The jointure may be destroyed by destroying the unity of title. As if one joint-tenant alienes and conveys his estate to a third person: here the joint-tenancy is severed, and turned into tenancy in common d; 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 continues. But a devise of one's share by will is no [186] 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 e) is already vested (4). 4. It may also be destroyed, by destroying the unity of interest. And therefore, if there be two joint-tenants. for life, and the inheritance is purchased by or descends upon either, it is a 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 (4) If a will is made by a joint-tenant of real property, devising his interest in the premises, and after the execution of the will there is a partition of the estate, the testator's share cannot pass by the devise unless there is a republication of the will subsequent to the partition. 3 Burr. 1488. For a joint-tenant is not enabled to devise his estate by the statute of wills 32 Hen. VIII. c, 1. explained by 34 & 35 Hen. VIII. c. 5. as tenants in common and co-parcenors. But if a tenant in common devises his estate, a subsequent partition is not a revocation of the will. 3 P. Wms. 169. N |