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Commentaries on the Laws of England (1765-1769)

Sir William Blackstone

BOOK 2, CHAPTER 12
Of Estates in Severalty, Joint-Tenancy, Coparcenary, and Common

We come now to treat of estate, 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. 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.

II. An estate in joint-tenancy is where lands of tenements are granted to two or more persons, to hold in fee-simple, fee-tail, for life, for years, or at will. In consequence of such grants the estate is called an estate in joint-tenancy,1 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 the joint estate, which by virtue of the statute 27 Hen. VIII. c. 10. is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman’s dower.2

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.

I. 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. Now, if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if an 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. For 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 same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession.

First, they must have one and the same interest. One joint-tenant 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.3 But, if land be limited to A and B for their lives, this makes them joint-tenants of the freehold; if to A and B and their heirs, it makes them joint-tenants of the inheritance.4 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: 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 has a several remainder in tail.5 Secondly, joint-tenants must also have an unity of title: their estate must be created by one and the same act, whether legal or illegal; as by one and the same grant, or by one and the same disseizin.6 Joint-tenancy cannot arise by descent or act of law; but merely by purchase, or acquisition by the act of the party: and, unless that act be one and the same, the two tenants would have different titles; and if they had different titles, one might prove good, and the other bad, which would absolutely destroy the jointure. Thirdly, there must also be an unity of time: their estates must be vested at one and the same period, as well as by one and the same title. As in case of a present estate made to A and B; or a remainder in fee to A and B after a particular estate; in either case A and B are joint tenants of this present estate, or this vested remainder. But if, after a lease for life, the remainder be limited to the heirs of A and B; and during the continuance of the particular estate A dies, which vests the remainder of one moiety in his heir; and then B dies, whereby the other moiety becomes vested in the heir of B: now A’s heir and B’s heir are not joint-tenants of this remainder, but tenants in common; for one moiety vested at one time, and the other moiety vested at another.7 Yet, where a feoffment was made to the use of a man, and such wife as he should afterwards marry, for term of their lives, and he after-wards married; in this case it seems to have been held that the husband and wife had a join estate, though vested at different times:8 because the use of the wife’s estate was in abeyance and dormant till the intermarriage; and, being then awakened, had relation back, and took effect from the original time of creation. Lastly, in join-tenancy, there must be an unity of possession. Joint-tenants are said to be seized per my et per tout [by half and by all], by the half or moiety, and by all; that is they each of them have the entire possession, as well of every parcel as of the whole.9 They have not, one of them a seizin of one half or moiety, and the other of the other moiety; neither can one be exclusively seized of one acre, and his companion of another; but each has an undivided moiety of the whole, and not the whole of an undivided moiety.10

Upon these principles, of a thorough and intimate union of interest and possession, depend many other consequences 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 inure to both, in respect of the joint reversion.11 If their lessee surrenders his lease to one of them, it shall also inure to both, because of the privity, or relation of their estate.12 One the same reason, livery of seizin, made to one joint-tenant, shall inure to both of them:13 and the entry, or re-entry, of one joint-tenant is as effectual in law as if it were the act of both.14 In all actions also relating to their joint estate, one joint-tenant cannot sue or be sued without joining the other.15 But if two or more joint-tenants be seized of an advowson, and they present different clerks, the bishop may refuse to admit either; because neither joint-tenant has a several right of patronage, but each is seized of the whole: and, if they do not both 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.16 Upon the same ground it is held, that one joint-tenant cannot have an action against another for trespass, in respect of his land;17 for each has an equal right to enter on 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 copyholds:18 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. 22.19 So too, tough at common law no action of account lay for one joint-tenant against another, unless he had constituted him his bailiff or receiver,20 yet now by the statute 4 Ann. c. 16. joint-tenant may have actions of account against each other, for receiving more than their due share of the profits of the tenements held in joint-tenant.

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 seized 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.21 This is the natural and regular consequence of the union and entirely of their interest. The interest of two joint-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 alienation or forfeiture of either) the interest become separate and distinct, the joint-tenancy instantly ceases. But, while it continues, each of two joint-tenants has a concurrent 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 divested 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 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 several, 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 authors22 the jus accrescendi [right of survivorship], because the right, upon the death of one joint-tenant, accumulates and increases to the survivors; or, as they themselves express it, “pars illa communis accrescit superstitibus, de persona in personam, usque ad ultimam superstitem” [“that common share accumulates to the survivors from one person to another even to the last Survivor”]. And this jus accrescendi ought to be mutual; which I apprehend to be the reason why neither the king,23 nor any corporation,24 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 seized of the entirety, by benefit of survivorship, for the king and the corporation can never die.

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, cannon indeed (being now past) by affected by any subsequent trans-actions. But, 2. the joint-tenants’ estate may be destroyed, without any alienation, by merely disuniting their possession. For joint-tenants being seized per my et per tout, every thing that tends to narrow that interest, so that they shall not be seized throughout the whole, and throughout every part, is a severance or destruction of the jointure. And therefore, if two join-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.25 By common law all the joint-tenants might agree to make partition of the lands, but one of them could not compel the others so to do:26 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.27 But now by the statutes 31 Hen. VIII. c. i. 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.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;28 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 severance of the jointure: for no testament takes effect till after the death of the testator, and by such death the right so the survivor (which accrued at the other29) is already vested.30 4. It may also be destroyed, by destroying the unity of interest. And therefore, if there by or descends upon either, it is a severance of the jointure:31 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, they are not separate estates, (which is requisite in order to a merger) but branches of one in-tire estate.32 In like manner, if a joint-tenant in fee makes a lease for life of his share, this defeats the jointure;33 for it destroys the unity both of title and of interest. And, whenever or by whatever means the jointure ceases or is severed, the right of survivorship or jus accrescendi the same instant ceases with it.34 Yet, if one of three joint-tenants alienes his share, the two remaining tenants still hold their parts by joint-tenancy and survivorship:35 and, if one of three joint-tenants releases his share to one of his companions, though the joint-tenancy is destroyed with regard to that part, yet the two remaining parts are still held in jointure;36 for they still preserve their original constituent unities. But when, 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 merely the possession is separated; so that the tenants have no longer these four indispensable properties, 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.

In general it is advantageous for the joint-tenants to dissolve the jointure; since thereby the right of survivorship is taken away, and each may transmit his own part to his own heirs. Sometimes however it is disadvantageous to dissolve the joint estate: as if there be joint-tenants for life, and they make partition, this dissolves the jointure; and, though before they each of them had an estate in the whole for their own lives and the life of their companion, now they have an estate in a moiety only for their own lives merely; and, on the death of either, the reversioner shall enter on his moiety.37 And therefore, if there be two joint-tenants for life, and one grants away his part for the life of his companion, it is a forfeiture:38 for, in the first place, by the severance of the jointure he has given himself in his own moiety only an estate for his own life; and then he grants the same land for the life of another: which grant, by a tenant for his own life merely, is a forfeiture of his estate;39 for it is creating an estate which may by possibility last longer then that which he is legally entitled to.

III. An estate held in coparcenary is where lands of inheritance descend from the ancestor to two or more persons. It arises either by common law, or particular custom. By common law: as where a person seized in fee-simple or in fee-tail dies, and his next heirs are two or more females, his daughters, sisters, aunts, cousins, or their representatives; in this case they shall all inherit, as will be more fully shown, when we treat of descents hereafter: and these co-heirs are then called coparceners; or, for brevity, parceners only.40 Parceners by particular custom are where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, etc.41 And, in either of these cases, all the parceners put together make but one heir; and have but one estate among them.42

The properties of parceners are in some respects like those of joint-tenants; they having the same unities of interest, title, and possession. They may sue and be sued jointly for matters relating to their own lands:43 and the entry of one of them shall in some cases inure as the entry of them all.44 They cannot have an action of waste;45 for coparceners could at all times put a stop to any waste by a 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 purchase lands, to hold to them and their heirs, they are not parceners, but joint-tenants:46 and hence it likewise follows, that no lands can be held in coparcenary, but for life or years, may be held in joint-tenants. 2. There is no unity of time necessary to an estate in coparcenary. For if a man has two daughters, to whom his estate descends in coparcenary. For if a man has 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;47 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 a unity, have not an entirety, of interest. They are properly entitled each to the whole of a distinct moiety;48 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 thereof, 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 aliens her share, though no partition be made, then are the lands no longer held in coparcenary, but in common.49

Parceners are so called, says Littleton,50 because they may be constrained to make partition. And he mentions many methods of making it;51 four of which are by consent, and one by compulsion. The first is, 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. But this privilege of seniority is then 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.52 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 [she who makes the division has the last choice]. 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.53 But there are some things which are in their nature impartible [indivisible]. 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.54

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 species of estates-tail, freely given by a relation for advancement of his kinswoman in marriage55) 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.56 This general division was known in the law of the Lombards,57 which direct 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 [to bring into hotchpot with her sisters, when she shall marry, as much as her father or brother may have given her]. With us it is denominated bringing those lands into botchpot;58 which term I shall explain in the very words of Littleton:59 “it seems that this word, hotchpot, 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,60 that the lands, both those given in frankmarriage and those 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 in hotchpot, she was presumed to be sufficiently provided for, and the rest of the inheritance was divided among her other sisters. The law of hotchpot 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 lands so given into hotchpot.61 And the reason is,
because lands descending in fee-simple are distributed by the policy of 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 law, so properly as 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 hotchpot; for no others are looked upon in law as given for the advancement of the woman, or by way of marriage-portion.62 And therefore, as gifts in frankmarriage are fallen into disuse, I should hardly have mentioned the law of hotchpot, 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 severalty.

IV. Tenants in common are such as hold by several and distinct titles, but by unity of possession; because none knows his own severalty, and therefore they all occupy promiscuously.63 This tenancy therefore happens, where there is an 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 is part in fee-simple, the other in tail, or for life; so that there is no necessary unity of 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 fever 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 alienee, the alienee and the other joint-tenant are tenants in common: for they now have several titles, the other joint-tenant by the original grant, the alienee by the new alienation;64 and they also have several interests, the former joint-tenant in sm fee-simple, the alienee for his own life only. So, if one joint-tenant give his part to A in tail, and the other gives is to B in tail, the donees are tenants in common, as holding by different titles and conveyances.65 If one of two parceners alienes, the alienee and the remaining parcener are tenants in common;66 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:67 and in this, and the like cases, their issues 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 too 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 give to two or more, and it be not joint-tenancy, it must be a tenancy in common. But the law is pat in its constructions to favor joint-tenancy rather than tenancy in common;68 because the divisible services issuing from land (as rent, etc) 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 held the one, and the other moiety to the other, is an estate in common;69 and, if one grants to another half his land, the grantor and grantee are also tenants in common:70 because, as has been before71 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 a joint-tenancy; because that is implied in the word “jointly,” even though the word “severally” seems to imply the direct reverse:72 and an estate given to A and B, equally to be divided between then, though in deeds it has been said to be a joint-tenancy,73 (for it implies no more than the law has annexed to that estate, viz. divisibility74) yet in wills it is certainly a tenancy in common;75 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 grant makes it the most usual as well as the safest way, when a tenancy in common is meant to be created, to add 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,76 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 the 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 to his companion for embezzling the profits of the estate;77 though, if one actually turns the other out of possession, an action of ejectment will lie against him.78 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,79 unless in the case where some entire or indivisible thing is to be recovered80) these are not applicable to tenants in common, whose interests are distinct, and whose titles are not joint but several.

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.


NOTES

     1.    Litt. § 277.
     2.    See pag. 137.
     3.    Co. Litt. 188.
     4.    Litt. § 277.
     5.    Ibid. § 285.
     6.    Ibid. § 278.
     7.    Co. Litt. 188.
     8.    Dyer. 340. 1 Rep. 101.
     9.    Litt. § 288. 5 Rep. 10.
   10.    Quilibet totum tenet et nihil tenet; scilicet, totum in communi, et nihil separatim per se. [Each holds the entirety and yet holds nothing; that is, the entirety in common, and nothing separately by itself.] Bract. 1. 5. tr. C. 26.
   11.    Co. Litt. 214.
   12.    Ibid. 192.
   13.    Ibid. 49.
   14.    Ibid. 319. 364.
   15.    Ibid. 195.
   16.    Co. Litt. 185.
   17.    3 Leon. 262.
   18.    1 Leon. 234.
   19.    2 Inst. 403.
   20.    Co. Litt. 200.
   21.    Litt. § 280. 281.
   22.    Bracton, 1. 4. ir. 3. c. 9. § 3. Fleta. 1. 3. c. 4.
   23.    Co. Litt. 190. Finch L. 83.
   24.    2 Lev. 12.
   25.    Co. Litt. 188. 193.
   26.    § 290.
   27.    Thus, by the civil law, nemo invitus compellitur ad communionem [no one is compelled to a joint possession against his will]. (Ff. 12. 6. 26. § 4.) And again: si non omnes qui rem communem habent, sed certi ex his, dividere desiderant; hoc judicium inter eos accipi potest [if only some of those who hold a thing in common desire a partition, this judgment may be received between them]. (Ff. 10.3.8.)
   28.    Litt. § 292.
   29.    Jus accrescendi praefertur ultimae voluntati. [The right of survivorship is preferred to the last will.] Co. Litt. 185.
   30.    Litt. § 287.
   31.    Cro. Eliz. 470.
   32.    2 Rep. 60. Co. Litt. 182.
   33.    Litt. § 302. 303.
   34.    Nihil de re accrescit ei, qui nihil in re quando jus accresceret habet. [No part of the estate accrues to him, who has nothing in the estate when the right accrues.] Co. Litt. 188.
   35.    Litt. § 294.
   36.    Ibid. § 304.
   37.    1 Jones. 55.
   38.    4 Leon. 237.
   39.    Co. Litt. 252.
   40.    Litt. § 241. 242.
   41.    Ibid. § 265.
   42.    Co. Litt. 163.
   43.    Co. Litt. 164.
   44.    Ibid. 188.
   45.    2 Inst.403.
   46.    Litt. § 254.
   47.    Co. Litt. 164. 174.
   48.    Ibid. 163, 164.
   49.    Litt. § 309.
   50.    § 241.
   51.    § 243 to 264.
   52.    Co. Litt. 166. 3 Rep. 22.
   53.    By statute 8 & 9 W. III. c. 3. An easier method of carrying on the proceedings on a writ of partition, of lands held either in joint-tenants, parcenary, or common, than was used at the common law, is chalked out and provided.
   54.    Co. Litt. 164, 165.
   55.    See pag. 115.
   56.    Bracton. l. 2. c. 34.Litt. § 266 to 273.
   57.    l. 2. t. 14. c. 15.
   58.    Britton. c. 72.
   59.    § 267.
   60.    Litt. § 268.
   61.    Litt. § 274.
   62.    Ibid. 275.
   63.    Ibid. 292.
   64.    Litt. § 293.
   65.    Ibid. 295.
   66.    Ibid. 309.
   67.    Ibid. 283.
   68.    Salk. 392.
   69.    Litt. § 298.
   70.    Ibid. 299.
   71.    See pag. 182
   72.    Poph. 52.
   73.    1 Equ. Cas. Abr. 291.
   74.    1. P. Wms. 17.
   75.    3 Rep. 39.1 Ventr. 32.
   76.    pag. 185, & 186.
   77.    Co. Litt. 199.
   78.    Ibid. 200.
   79.    Litt § 311.
   80.    Co. Litt. 197.