ment of the woman, or by way of marriage-portion. And, therefore, as gifts in frankmarriage are fallen into disuse, I should hardly have mentioned the law of hotch-pot, had not this method of division been revived and copied by the statute for distributiion of personal estates, which we shall hereafter consider at large.

THE estate in coparcenary may be dissolved, either by partition, which disunites the possession; by alienation of one parcener, which disunites the title, and may disunite the interest; or by the whole at last descending to and vesting in one single person, which brings it to an estate in severalty.

IV. TENANTS in common are such as hold by several and distinct titles, but by unity of possession; because none knoweth his own severalty, and therefore they all occupy promiscuously. This tenancy therefore happens where there is a unity of possession merely, but perhaps an entire disunion of interest, of title, and of time. For if there be two tenants in common of lands, one may hold his part in fee-simple, the other in tail, or for life; so that there is no necessary unity of [ 192 interest: one may hold by descent, the other by purchase ; or the one by purchase from A, the other by purchase from B; so that there is no unity of title; one's estate may have been vested fifty years, the other's but yesterday; so there is no unity of time. The only unity there is, is that of possession; and for this Littleton gives the true reason, because no man can certainly tell which part is his own otherwise even this would be soon destroyed.

TENANCY in common may be created, either by the destruction of the two other estates, in joint-tenancy and coparcenary, or by special limitation in a deed. By the destruction of the two other estates, I mean such destruction as does not sever the unity of possession, but only the unity of title or interest: As, if one of two joint-tenants in fee alienes his estates for the life of the alienee, the alienee and the other joint-tenant are tenants in common; for they have now several titles, the other joint-tenant by the original grant, the alienee

by the new alienation; and they also have several interests, the former joint-tenant in fee-simple, the alienee for his own life only. So, if one joint-tenant gives his part to A in tail, and the other gives his to B in tail, the donees are tenants in common, as holding by different titles, and conveyances'. If one of two parceners alienes, the alienee and the remaining parcener are tenants in common; because they hold by different titles, the parcener by descent, the alienee by purchase. So likewise, if there be a grant to two men, or two women, and the heirs of their bodies, here the grantees shall be joint-tenants of the life-estate, but they shall have several inheritances; because they cannot possibly have one heir of their two bodies, as might have been the case had the limitation been to a man and woman, and the heirs of their bodies begotten: and in this, and the like cases, their issue shall be tenants in common; because they must claim by different titles, one as heir of A, and the other as heir of B; and those [193] two not titles by purchase, but descent. In short, whenever

an estate in joint-tenancy or coparcenary is dissolved, so that there be no partition made, but the unity of possession continues, it is turned into a tenancy in common.

A TENANCY in common may also be created by express limitation in a deed: but here care must be taken not to insert words which imply a joint estate; and then if lands be given to two or more, and it be not joint-tenancy, it must be a tenancy in common. But the law is apt in its constructions to favour joint-tenancy rather than tenancy in common "; because the divisible services issuing from land (as rent, &c.) are not divided, nor the entire services (as fealty) multiplied, by joint-tenancy, as they must necessarily be upon a tenancy in common. Land given to two, to be holden the one moiety to one, and the other moiety to the other, is an estate in common "; and if one grants to another half his land, the grantor and grantee are also tenants in common*: because, as has been before observed, jointtenants do not take by distinct halves or moieties; and by

such grants the division and severalty of the estate is so plainly expressed, that it is impossible they should take a joint-interest in the whole of the tenements. But a devise to two persons to hold jointly and severally, is said to be a joint-tenancy; because that is necessarily implied in the word "jointly," the word "severally" perhaps only implying the power of partition: and an estate given to A and B, equally to be divided between them, though in deeds it hath been said to be a joint-tenancya, (for it implies no more than the law has annexed to that estate, viz. divisibility b,) yet in wills it is certainly a tenancy in common c; because the devisor may be presumed to have meant what is most beneficial to both the devisees, though his meaning is imperfectly expressed. And this nicety in the wording of grants makes it the most usual as well as the safest way, when a tenancy in common is meant to be created, to add [194] express words of exclusion as well as description, and limit the estate to A and B, to hold as tenants in common, and not as joint-tenants.

As to the incidents attending a tenancy in common: tenants in common (like joint-tenants) are compellable by the statutes of Henry VIII. and William III., before mentioned, to make partition of their lands; which they were not at common law. They properly take by distinct moieties, and have no entirety of interest; and therefore there is no survivorship between tenants in common. Their other incidents are such as merely arise from the unity of possession; and are therefore the same as appertain to joint-tenants merely upon that account: such as being liable to reciprocal actions of waste, and of account, by the statutes of Westm. 2. c. 22. and 4 Ann. c. 16. For by the common law no tenant in common was liable to account with his companion for embezzling the profits of the estatee; though, if one actually turns the other out of possession, an action of ejectment will lie against him '. But, as for other incidents of joint-tenants, which arise from the privity of title, or the

union and entirety of interest, (such as joining or being joined in actions 8, unless in the case where some entire or indivisible thing is to be recovered ",) these are not applicable to tenants in common, whose interests are distinct, and whose titles are not joint but several. (10).

ESTATES in common can only be dissolved 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. And this finishes our inquiries with respect to the nature of

(10) Whether tenants in common should sue jointly or severally, depends on the nature of the thing sued for, and the interest which they have in it; if it be for an indivisible thing, or for damages for an injury or nuisance to their common property, or for breaches of covenant on a lease made by them jointly, in these and all cases falling under the same principle, they should join; but where they seek to recover the estate itself, or sue for damages on covenants for the title annexed to it, in such cases they should sue severally. See Com. Dig. Abatement. E. 10.

CHAPTER THE THIRTEENTH.

OF THE TITLE TO THINGS REAL,

IN GENERAL.

THE foregoing chapters having been principally employed in defining the nature of things real, in describing the tenures by which they may be holden, and in distinguishing the several kinds of estate or interest that may be had therein; I now come to consider, lastly, the title to things real, with the manner of acquiring and losing it.

A TITLE is thus defined by sir Edward Cokea, titulus est justa causa possidendi id quod nostrum est; or, it is the means whereby the owner of lands hath the just possession of his property.

THERE are several stages or degrees requisite to form a complete title to lands and tenements. We will consider

them in a progressive order.

I. THE lowest and most imperfect degree of title consists in the mere naked possession, or actual occupation of the estate; without any apparent right, or any shadow or pretence of right, to hold and continue such possession. This may happen, when one man invades the possession of another, and by force or surprise turns him out of the occupation of his lands; which is termed a disseisin, being a deprivation of that actual seisin, or corporal freehold of the lands, which the tenant before enjoyed. (1). Or it may happen, that after

a 1 Inst. 345.

(1) See Vol. III. p. 170, 171. for a more full and accurate account of disseisin.