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shall all inherit, as will be more fully shewn, when we treat of descents hereafter; and these co-heirs are then called coparceners; or, for brevity, parceners only. (q) Parceners by particular custom are where lands descend, as in gavel-kind, to all the males in equal degree, as sons, brothers, uncles, &c. (r) And, in either of these cases, all the parceners put together make but one heir, and have but one estate among them. (s) "

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The properties of parceners are in some respects like those of jointtenants; they having the same unities of interest, title, and possession. They may sue and be sued jointly for matters relating to their [188] own lands; (t) and the entry of one of them shall in some cases enure as the entry of them all. (u) They cannot have an action of trespass against each other but herein they differ from joint-tenants, that they are also excluded from maintaining an action of waste; (w) for coparceners could at all times put a stop to any waste by writ of partition, but till the statute of Henry the Eighth joint-tenants had no such power. Parceners also differ materially from joint-tenants in four other points. 1. They always claim by descent, whereas joint-tenants always claim by purchase.Therefore, if two sisters purchased lands, to hold to them and their heirs, they are not parceners, but joint-tenants; (x) and hence it likewise follows, that no lands can be held in coparcenary, but estates of inheritance, which are of a descendible nature; whereas not only estates in fee and in tail, but for life or years, may be held in joint-tenancy. 2. There is no unity of time necessary to an estate in coparcenary. For if a man had two daughters, to whom his estate descends in coparcenary, and one dies before the other; the surviving daughter and the heir of the other, or when both are dead, their two heirs are still parceners; (y) the estates vesting in each of them at different times, though it be the same quantity of interest, and held by the same title. 3. Parceners, though they have an unity, have not an entirety of interest. They are properly entitled each to the whole of a distinct moiety; (2) and of course there is no jus accrescendi, or survivorship between them: for each part descends severally to their respective heirs, though the unity of possession continues. And as long as the lands continue in a course of descent, and united in possession, so long are the tenants therein, whether male or female, called parceners. But if the possession be once severed by partition, they are no longer parceners, but tenants in severalty; or if one parcener alienes her share, though [189] no partition be made, then are the lands no longer held in coparcenary, but in common. (a)

Parceners are so called, saith Littleton, (b) because they may be constrained to make partition. 15 And he mentions many methods of making it; (c) four of which are by consent, and one by compulsion. The first is,

g Litt. § 241, 242.

t Ibid. 164.

x Litt. § 254.

a Litt. § 309.

r Ibid. § 265.

u Ibid. § 188. 243. y Co. Litt. 164. 174.

b § 241.

s Co. Litt. 163.

w 2 Inst. 403.

2 lbid. 163, 164.
c § 243 to 264.

(14) Semble therefore that coparceners are entitled to be admitted to copyhold tenements as one heir, and upon payment of one set of fees. 3 B & C. 173.

(15) Coparceners may convey to each other, both by feoffment and by release, because their seisin to some interests is joint, and to some several. Co. Litt. 200. b. Whereas joint-tenants can release to, but not enfeoff each other, because the freehold is joint. Ibid. And one tenant in common may infeoff his companion, but not release, because the freehold is several. Ibid

Such partitions are now usually made by means of a bill in chancery in the same manner as partitions between joint-tenants. And it is said, in a modern case, that it was probably in consequence of the stat. 31 Hen. VIII. c. 1. that the court of chancery assumed this jurisdiction. 2 Ves. Jun. 125. Cruise Dig. 2 vol. 547. See page 183. n. Parceners of a copyhold cannot make partition without the sanction of the lord. P. 41 Eliz. B. R. Fuller, Hal. MSS. Chitty

where they agree to divide the lands into equal parts in severalty, and that each shall have such a determinate part. The second is, when they agree to choose some friend to make partition for them, and then the sisters shall choose each of them her part according to seniority of age; or otherwise, as shall be agreed. The privilege of seniority is in this case personal; for if the eldest sister be dead, her issue shall not choose first, but the next sister. But, if an advowson descend in coparcenary, and the sisters cannot agree in the presentation, the eldest and her issue, nay her husband, or her assigns, shall present alone, before the younger. (d) 16 And the reason given is, that the former privilege, of priority in choice upon a division, arises from an act of her own, the agreement to make partition; and therefore is merely personal : the latter, of presenting to the living, arises from the act of the law, and is annexed not only to her person, but to her estate also. A third method of partition is, where the eldest divides, and then she shall choose last; for the rule of law is, cujus est divisio, ulterius est electio. The fourth method is, where the sisters agree to cast lots for their shares. And these are the methods by consent. That by compulsion is, where one or more sue out a writ of partition against the others; whereupon the sheriff shall go to the lands, and make partition thereof by the verdict of a jury there impanneled,

and assign to each of the parceners her part in severalty. (e) But [190] there are some things which are in their nature impartible.

The mansion-house, common of estovers, common of piscary uncertain, or any other common without stint, shall not be divided; but the eldest sister, if she pleases, shall have them, and make the others a reasonable satisfaction in other parts of the inheritance: or, if that cannot be, then they shall have the profits of the thing by turns, in the same manner as they take the advowson. (ƒ)

There is yet another consideration attending the estate in coparcenary; that if one of the daughters has had an estate given with her in frankmarriage by her ancestor (which we may remember was a species of estatestail, freely given by a relation for advancement of his kinswoman in marriage), (g) in this case, if lands descend from the same ancestor to her and her sisters in fee-simple, she or her heirs shall have no share of them, unless they will agree to divide the lands so given in frankmarriage in equal proportion with the rest of the lands descending. (h) This mode of division was known in the law of the Lombards; (2) which directs the woman so preferred in marriage, and claiming her share of the inheritance, mittere in confusum cum sororibus, quantum pater aut frater ei dederit, quando ambulaverit ad maritum. With us it is denominated bringing those lands into hotch-pot: (k) which term I shall explain in the very words of Littleton: () "it seemeth that this word hotch-pot, is in English a pudding; for in a "pudding is not commonly put one thing alone, but one thing with other "things together." By this housewifely metaphor our ancestors meant to inform us, (m) that the lands, both those given in frankmarriage and those

d Co. Litt. 166. 3 Rep. 22.

e By statute 8 & 9 W. III. c. 31. an easier method of carrying on the proceedings on a writ of partition, of lands held either in joint-tenancy, parcenary, or common, than was used at the common law, is chalked out and provided.

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g See page 115.
il. 2. t. 14. c. 15.

1 § 267.

m Litt. § 268.

(16) It has been doubted whether the grantee of the eldest sister shall have the first and sole presentation after death. Harg: Co. Litt. 266. But it was expressly determined in favour of Such a grantee in 1 Ves. 340. See Burn's Ec. Law. 1 vol. 15.

descending in fee-simple, should be mixed and blended together, and then divided in equal portions among all the daughters. But this was left to the choice of the donee in frankmarriage: and if she did not choose to put her lands into hotch-pot, she was presumed to be sufficiently provided for, and the rest of the inheritance was divided among her other sisters. The law of hotch-pot took place then only when the other lands descending from the ancestor were fee-simple; for if they descended in tail, the donee in frankmarriage was entitled to her share, without bringing her [191] lands so given into hotch-pot. (n) And the reason is, because lands descending in fee-simple are distributed, by the policy of the law, for the maintenance of all the daughters; and if one has a sufficient provision out of the same inheritance, equal to the rest, it is not reasonable that she should. have more but lands, descending in tail, are not distributed by the operation of the law, but by the designation of the giver, per formam doni: it matters not therefore how unequal this distribution may be. Also no lands, but such as are given in frankmarriage, shall be brought into hotch-pot; for no others are looked upon in law as given for the advancement of the woman, or by way of marriage-portion. (o) 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 distribution 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 seve ralty.

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. (p) 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 com

mon 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 interest: one may [192] 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.

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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 estate for the life of the alience, 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

n Ibid. § 274.

o Ibid. 275.

p Litt. 232.

(17) As to tenants in common, in general, 6 Cruise Dig. ind. tit. Tenancy in Common; Bac. Ab. Joint-tenants and Tenants in Common; Com. Dig. Estates, K. 8. K. 2.; Devise, N. 8. ; Chancery, 3 V. 4.; and Preston on Estates. In quare impedit both must join. 2 Saand. 116. b. As to personalty, 2 Saund. 47. h. in notes.

(18) See cases, ante 180. note 2.

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alienee by the new alienation; (q) 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. (r) If one of two parceners alienes, the alienee and the remaining parcener are tenants in common; (s) 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: (t) 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 [193] those 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: (u) 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; (w) and, if one grants to another half his land, the grantor and grantee are also tenants in common: (x) because, as has been before (y) observed, joint-tenants 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; (2) 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-tenancy (a) (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 [194] add express words of exclusion as well as description, and limit the es

tate 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, (d) 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

s Ibid. 309. * Ibid. 299. bi P. Wnis. 17.

q Ibid. 293. u Salk. 392.

z Poph. 52.

r Ibid. 295.
w Litt. § 298.
a Eq. Cas. Abr. 291.
d pag. 185, & 189.

t Ibid. 283.
y See p. 182.
c3 Rep. 39. 1 Vent. 32.

CHAP. 12.]

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Their other incidents are such as merely arise from tenants in common.19 the unity of possession; and are therefore the same as appertain to jointtenants 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 estate; (e) though, if one actually turns the other out of possession, an action of ejectment will lie against him. (f)20 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, (g) unless in the case where some entire or indivisible thing is to be recovered), (h) these are not applicable to tenants in common, whose interests are distinct, and whose titles are not joint but several.21

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 estates.22

e Co. Litt. 199.

f Ibid. 200.

g Litt. § 311.

h Co. Litt. 197.

(19) But a tenancy in common with benefit of survivorship may exist without being a jointtenancy, because survivorship is not the only characteristic of a joint-tenancy. Per Bayley, J. 1 M. & S. 435.

(20) But adverse possession, or the uninterrupted receipt of the rents and profits, no demand being made by co-tenant, or if made, refused, and his title denied, is now held to be evidence of an actual ouster. And where one tenant in common has been in undisturbed possession for twenty years, in an ejectment brought against him by the co-tenant, the jury will be directed to presume an actual ouster, and consequently to find a verdict for the defendant, the plaintiff's right to recover in ejectment after twenty years being taken away by the statute of limitations. Cowp. 217. But the statute always receives a strict construction in favour of the claimant, therefore presumptions are against adverse possession, as between privies. 2 Bos. & Pul. 542. If a lessee of two tenants in common pay the whole of the rent to one after notice from the other to pay them each a moiety, the tenant in common, who gave such notice, may distrain for his share. Harrison v. Ornby, 5 T. R. 246. 5 Bar. & Ald. 851.

An action of ejectment is maintainable by one of two tenants in common who had agreed to divide their property, if after such agreement the defendant who held under both as occupier, pay rent under a distress to such co-tenant alone; and it is no defence to such action, that the deed of partition between the co-tenants had not been executed 3 Moore, 229. Brod. & B. 11. S. C. and see 5 Bar. & Ald. 851.

Chitty.

(21) The rule which determines whether tenants in common should sue jointly or severally, is founded upon the nature of their interest in the matter or thing which is the cause of action. For injuries to their common property, as trespass quare clausum fregit, or a nuisance, &c. or the recovery of any thing in which they have a cominon right, as for rent reserved by them, or waste upon a lease for years, they should all be a party to the action; but they must sue severally in a real action generally, for they have several titles. Com. Dig. Abatement, E. 10. Co. Lit. 197. But if waste be committed where there is no lease by them all, the action by one alone is good. 2 Mod. 62. But one tenant in common cannot avow alone for taking cattle daChitty. mage feasant, but he ought also to make cognizance as bailiff of his companion. 2 Hen. Bla. 386. Sir Wm. Jones Rep. 253.

(22) One tenant in cominon cannot maintain an action of trover against another, except where the thing in common has been destroyed. The same law is applicable to parceners.

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