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Commentaries on American Law (1826-30)
Chancellor James Kent
Of A Joint Interest In Estates
A JOINT interest may be had either in the title or possession of land. Two or more persons may have an interest in connection in the title to the same land, either as joint tenants or coparceners, or in the possession of the same as tenants in common.
(I.) Joint tenants are persons who own lands by a joint title, created, expressly by one and the same deed or will. They hold uniformly by purchase.1 It is laid down in the text books as a general proposition, that the estate held in joint tenancy must be of the same duration or nature, and quantity of interest, whether the estates of the several joint tenants be in fee, or in tail, or for life, or for years.2 But the proposition must be taken with some explanations. Two persons may have a joint estate for life,3 with remainder to one of them in fee, and if he who has the fee first dies, the survivor takes the whole estate for his life. So, they may have an estate in joint tenancy for their lives, with several inheritances.4 Lord Coke5 said, that an estate of freehold, and an estate for years, could not stand in jointure; but he admitted that there might be two joint tenants, the one for life, and the other in fee. It is an acknowledged principle,6 that where the fee is limited, by one and the same conveyance, to two persons, and to the heirs of one of them, it is a good jointure. They are, in such a case, joint tenants of a life estate, with a remainder in fee to one of them. It is another general rule, that the estates of the joint tenants must be created at one and the same time, as well as by one and the same title.7 But this rule has its exceptions, and it does not apply to the learning of uses and executory devises. If a person makes a feoffment in fee to the use of himself for life, and of such wife as he should afterwards marry for their joint lives, he, and the wife whom he should afterwards marry, are joint tenants, though they come to their estates at several times. The estate of the wife is in abeyance until the marriage, and then it has relation back, and takes effect from the original time of creation.8 So, if there be a devise, or limitation, to the use of the children of A., the estate may vest in joint tenancy in one, and afterwards in other children, as they progressively are born.9
From this thorough and intimate connection between joint tenants, results the principle, that the beneficial acts of one of them respecting the estate, will enure equally to the advantage of all.10 One joint tenant may distrain for rent, and appoint a bailiff for that purpose, unless the other expressly dissents.11 Each of them may enter upon the land, and exercise at his pleasure every reasonable act of ownership; yet one joint tenant is liable to his companion for any waste committed upon the estate, and they are severally accountable to each other for the rents and profits of the joint estate.12 Under these regulations, joint tenants are regarded as having one entire and connected right, and they must join, and be joined, in all actions respecting the estate.13
Joint tenants are said to be seized per my et per tout, and each has the entire possession, as well of every parcel as of the whole. They have each (if there be two of them for instance) an undivided moiety of the whole.14 A joint tenant, in respect to his companion, is seized of the whole; but for the purposes of alienation, and to forfeit, and to lose by default in a praecipe, he is seized only of his undivided part or proportion.15
The doctrine of survivorship, or jus accrescendi, is the distinguishing incident of title by joint tenancy, and, therefore, at common law, the entire tenancy or estate, upon the death of any of the joint tenants, went to the survivors, and so on to the last survivor, who took an estate of inheritance. The whole estate or interest held in joint tenancy, whether it was an estate in fee, or for life, or for years, or was a personal chattel, passed to the last survivor, and vested in him absolutely. It passed to him free, and exempt from all charges made by the deceased co-tenant.16 The consequence of this doctrine is, that a joint tenant cannot devise his interest in the land, for the devise does not take effect until after the death of the devisor, and the claim of the surviving tenant arises in the same instant with that of the devisee, and is preferred.17 If a joint tenant makes a will, and he then becomes solely seized by survivorship, the will does not operate upon the title so acquired without the solemnity of republication.18 The same instantaneous transit of the estate to the survivor, bars all claim of dower on behalf of the widow of the deceased joint tenant.19 But the charges made by a joint tenant, and judgments against him, will bind his assignee, and him, as survivor.20
The common law favored title by joint tenancy, by reason of this very right of survivorship, Its policy was averse to the division of tenures, because it tended to multiply the feudal services, and weaken the efficacy of that connection.21 But in Hawes v. Hawes,22 Lord Hardwicke observed, that the reason of that policy had ceased with the abolition of tenures, and he thought, that even the courts of law were no longer inclined to favor them, and, at any rate, they were not favored in equity, for they were a kind of estates that made no provision for posterity. As an instance of the equity view of the subject, we find that the rule of survivorship is not applied to the case of money loaned by two or more creditors on a joint mortgage.23 The right of survivorship is also rejected in all cases of partnerships, for it would operate very unjustly in such cases.24 In this country, the title by joint tenancy is veiI much reduced in extent, and the incident of survivorship is still more extensively destroyed, except where it is proper and necessary, as in the case of titles held by trustees.
In New York, as early as February, 1786, estates in joint tenancy were abolished, except in executors, and other trustees, unless the estate was expressly declared in the deed or will creating it, to pass in joint tenancy. The New York Revised Statutes25 have re-enacted the provision, and with the further declaration, that every estate, vested in executors or trustees, as such, shall be held in joint tenancy. The doctrine of survivorship incident to joint tenancy, (excepting, I presume, estates held in trust,) is abolished in the states of Connecticut, Pennsylvania,26 Virginia, Kentucky, Indiana, Missouri, Tennessee, North and South Carolina, Georgia, and Alabama. In the states of Maine, New Hampshire, Massachusetts, Rhode Island, Vermont, New Jersey, and Delaware, joint tenancy is placed under the same restriction as in New York; and it cannot be created but by express words, and when lawfully created, it is presumed that the common law incidents belonging to that tenancy follow. The English law of joint tenancy does not exist at all in Louisiana, and it exists in full force in Maryland and Illinois.27
The destruction of joint tenancies to the extent which has been stated, does not apply to conveyances to husband and wife, which, in legal construction, by reason of the unity of husband and wife, are not strictly joint tenancies, but conveyances to one person. They cannot take by moieties, but they are both seized of the entirety, and the survivor takes the whole; and, during their joint lives, neither of them can alien so as to bind the other.28 If an estate be conveyed expressly in joint tenancy, to a husband and wife, and to a stranger, the latter takes a moiety, and the husband and wife, as one person, the other moiety.29 But if the husband and wife had been seized of the lands as joint tenants before their marriage, they would continue joint tenants afterwards, as to that land, and the consequences of joint tenancy, such as severance, partition, and the jus accrescendi would apply.30 It is said, however, to be now understood, that husband and wife may, by express words, be made tenants in common by a gift to them during coverture.31
Joint tenancy may be destroyed by destroying any of its constituent unities except that of time. If A. and B. be joint tenants, and A. conveys his joint interest, being his moiety of the estate, to C., the joint tenancy is severed, and turned into a tenancy in common, as between B. and C., for they hold under different conveyances. So, if A., B., and C., were joint tenants, and A. conveyed his joint interest to D., the latter would be a tenant in common of one third, and B. and C. continue joint tenants of the other two thirds.32 The same consequence would follow, if one of three joint tenants was to release his share to one of his companions; there would be a tenancy in common as to that share, and the jointure would continue as to the other two parts.33 The proper conveyance between joint tenants is a release, and each has the power of alienation over his aliquot share. Joint tenants may also sever the tenancy voluntarily by deed, or they may compel a partition by writ of partition, or by bill in equity. It is to be presumed, that the English statutes of 31 and 32 Hen. VIII. have been generally re-enacted or adopted in this country, and, probably, with increased facilities for partition. They were reenacted in New York the 6th of February, 1788; and the New York Revised Statutes34 have made further and more specific and detailed provisions for the partition of lands, held either in joint tenancy, or in common, and they have given equal jurisdiction over the subject to the courts of law,, and of equity. In Massachusetts, also, by statute, the writ of partition is not only given, but partition may be effected by petition without writ.35
The jurisdiction of chancery in awarding partition, is well established in England by a long series of decisions, and it has been found, by experience, to be a jurisdiction of great public convenience.36 But a court of equity does not interfere unless the title be clear, and never where the title is denied, or suspicious, until the party seeking a partition has had an opportunity to try his title at law.37 The same principle has been acted upon in the courts of equity in this country.38 The New York Revised Statutes39 have prescribed to the courts of law and the Court of Chancery, in respect to partition, that whenever there shall be a denial of the co-tenancy, an issue shall be formed, and submitted to a jury to try the fact; and the respective rights of the parties are to be ascertained and settled before partition be made, or a sale directed.
A final judgment or decree, upon partition at law, under the New York Revised Statutes, binds all parties named in the proceedings, and having, at the time, any interest in the premises divided, as owners in fee, or as tenants for years, or as entitled to the reversion, remainder, or inheritance, after the termination of any particular estate, or as having a contingent interest therein, or an interest in any undivided share of the premises, as tenants for years, for life, by the curtesy, or in dower. But the judgment does not affect persons having claims as tenants in dower, by the curtesy, or for life, in the whole of the premises subject to the partition.40 It is likewise provided, in respect to the exercise of equity jurisdiction, in the case of partition, that if it should appear that equal partition cannot be made without prejudice to the rights and interests of some of the parties, the court may decree compensation to be made by one party to the other, for equality of partition, according to the equity of the case.41 This is the rule ill equity, independent of any statute provision, when owelty of partition cannot otherwise be made.42
(2.) An estate in coparcenary always arises from descent. At common law it took place when a man died seized of an estate of inheritance, and left no male issue, but two or more daughters, or other female representatives in a remoter degree. In this case, they all inherited equally as co-heirs in the same degree, or in unequal proportions, as co-heirs in different degrees.43 They have distinct estates, with a right to the possession in common, and each has a power of alienation over her particular share. Coparceners, in like manner as joint tenants, may release to each other, and if one of them conveys to a third person, the alienee, and the other coparceners, will be tenants in common, though the remaining coparceners, as between themselves, will continue to hold in coparcenary.44
Coparceners resemble joint tenants in having the same unities of title, interest, and possession. The seizin of one coparcener is generally the seizin of the others, and the possession of one is the possession of all, except in cases of actual ouster. But they differ from joint tenants in other respects in a most material degree. They are said to be seized like joint tenants per my et per tout; and yet each parcener has a devisable interest, and the doctrine of survivorship does not apply to them. The share of each partner descends severally to their respective heirs. They may sever their possession, and dissolve the estate, in coparcenary, by consent, or by writ of partition at common law. The common law learning of partition, in respect to parceners, is displayed at large by Lord Coke.45 He calls it a “cunning learning,” and it is replete with subtle distinctions, and antiquated erudition. The statute of 8 and 9 West. 3. c. 31. prescribed an easier method of carrying on the proceedings on a writ of partition, than that which was used at common law; and this, or a still simpler method, without the expense of a writ of partition, has been generally adopted in this country. By the New York Revised Statutes,46 persons who take by descent under the statute, if there be more than one person entitled, take as tenants in common in proportion to their respective rights; and it is only in very remote cases, which can scarcely ever arise, that the rules of the common law doctrine of descent can apply. As estates descend in every state to all the children equally, there is no substantial difference left between coparceners and tenants in common. The title inherited by more persons than one, is, in some of the states, expressly declared to be a tenancy in common, as in New York and New Jersey, and where it is not so declared the effect is the same; and the technical distinction between coparcenary and estates in common, may be considered as essentially extinguished in the United States.47
(3.) Tenants in common are persons who hold by unity of possession, and they may hold by several and distinct titles, or by title derived at the same time, by the same deed or descent. In this respect the American law differs from the English common law. This tenancy, according to the common law, is created by deed or will, or by change of title from joint tenancy or coparcenary, or it arises, in many cases, by construction of law.48 In this country, it may be created by descent, as well as by deed or will; and whether the estate be created by act of the party, or by descent, in either case tenants in common are deemed to have several and distinct freeholds, for that circumstance is a leading characteristic of tenancy in common. Each tenant is considered to be solely or severally seized of his share. As estates in joint tenancy are so much discouraged by the statute laws of this country, and the doctrine of survivorship, in so many of the states, exploded, even where joint tenancy, with its other unimportant incidents, may continue to exist, the many questions in the books, arising upon the construction of the words of a deed or will, operating to create the one or the other tenancy, become comparatively unimportant.
The conveyance of the undivided share of an estate in common, is made in like manner as if the tenant in common was seized of the entirety.49 But one joint tenant, or tenant in common, cannot convey a distinct portion of the estate by metes and bounds, so as to prejudice his co-tenants or their assignees, even though it may bind him by way of estoppel. As against the co-tenants, such a deed is inoperative and void.50 If tenants in common join in a lease, it is, in judgment of law, the distinct lease of each of them, for they are separately seized, and there is no, privity of estate between them. They may enfeoff or convey to each other, the same as if they dealt with a stranger.51 They are deemed to be seized per my, but not per tout, and, consequently, they must sue separately in actions that savour of the realty. But they join in actions relating to some entire and indivisible thing, and in actions of trespass relating to the possession, and in debt for rent, though not in an avowry for rent.52 The ancient law raised this very artificial distinction, that tenants in common might deliver seizin to each other, but they could not convey to each other by release. A joint tenant could not enfeoff his companion, because they were both actually seized, but for that very reason they might release to each other; whereas, on the other hand, tenants in common might enfeoff each other, but they could not release to each other, because they were not jointly seized.53 Nothing contributes more to perplex and obscure the law of real property, than such idle and unprofitable refinements.
The incidents to an estate in common are similar to those applicable to joint estates. The owners can compel each other, by the like process of law, to a partition, and they are liable to each other for waste, and they are bound to account to each other for a due share of the profits of the estate in common. The mere occupation of the, premises by one joint tenant, or tenant in common, would not, of itself, at common law, have entitled his co-tenant to call him to an account. He must have stood in the light of a bailiff or receiver, in order to be rendered responsible.54 But the statute of 4 Anne, c. 16. rendered joint tenants, and tenants in common, liable in account as bailiff’s for receiving more than their just share; and this provision was re-enacted in New York in 1788, and is now incorporated into the revised statutes.55 It is to be presumed, from the reasonableness of the provision, that it has been introduced, in substance, into the general law of this country.56
The possession of one tenant in common, is the possession of the others, and the taking of the whole profits by one, does not amount to an ouster of his companions. But if one actually ousts the other, or affords, by his acts, sufficient ground for a jury to presume an ouster, the one that is ousted will be driven to his action of ejectment.57 So, one tenant in common cannot bring an action of trespass against another for entry upon, and enjoyment of, the common property, nor sue him to recover the documents relative to the joint estate. If, however, one tenant occupies a particular part of the premises by agreement, and his co-tenant disturbs him in his occupation, he becomes a trespasser.58
One joint tenant, or tenant in common, can compel the others to unite in the expense of necessary reparations to a house or mill belonging to them; though the rule is limited to those parts of the common property, and does not apply to the case of fences enclosing wood or arable lands. The writ de reparatione facienda lay, at common law, in such cases, when one tenant was willing to repair, and the others would not.59 In Massachusetts, it is doubted whether this rule applies in that state to mills, and it is, at least, so far equitably modified by statute, that if one part owner of a mill repairs against the consent of his partners, he must look to the profits for his indemnity.60 To sustain the action there must be a request to join in the reparation, and a refusal, and the expenditures must have been previously made.61 The doctrine of contribution, in such cases, rests on the principle, that where parties stand in equali jure; equality of burden becomes equity; but the necessity of the rule does not press with the like overbearing force that it does in many other cases arising out of the law of vicinage; for the co-tenant who wishes to repair beyond the inclination or ability of his companion, has his easy and prompt remedy, by procuring a partition or sale of the common property.
1. 2 Blacks. Com.181. Litt. sec. 304
2. 2 Blacks. Com. 181. 2 Woodd. Lec. 127.
3. Litt. sec. 285.
4. Ibid. sec. 285.
5. Co. Litt. 188. a.
6. Wiscot’s Case, 2 Co. 60. Litt. sec. 285.
7. 2 Blacks. Com. 181.
8. Co. Litt. 188, a. 1 Co. 101. 2 Blacks. Com. 182.
9. Preston on Abstracts, vol. ii. 67. Mr. Hargrave, in note 13 to Co. Litt. 188. a. intimates that the creation of an estate in joint tenancy, in several tenants, to commence at different times, can only be in cases of limitations by way of use, in which the estate is vested in the feoffee, till the future use comes in esse. But the uses may be raised by common law conveyances, as fine or feoffment, and the limitation may be declared by devise, though it be not by way of use. The distinction was taken in Samme’s case, (13 Co. 54.) between a conveyance at common law, and one to uses; and it was said, that joint tenants must be seized to a use when they come to the estate at several times. See, also, Aylor v. Chep, Cro. J. 259. Sussex v Temple, 1 Lord Raym. 310. Oates v. Jackson, str. 1172. Stratton v. Best, 2 Bro. 233. Lord Thurlow, in the last case, would seem to have discarded this very technical distinction; for he declared, that whether the settlement before him was to be considered as the conveyance of a legal estate, or a deed to uses, made no difference; and the estate would be a joint tenancy, though vested at different times.
10. 2 Blacks. Com. 182.
11. Robinson v. Hoffman, 4 Bingham, 562.
12. The statutes of West. 2. c. 22. and 4 Anne, c. 16. on this subject, have, doubtless, been adopted in this country, wherever the English doctrine of joint tenancy exists. (Tucker’s Blackstone, vol. ii. 184. note. Laws of N.Y. sess. 10. ch. 6. sess. 11. ch. 4. The N.Y. Revised Statutes, vol. i. 750. sec. 9. have given not only an action of account, but an action for money had and received, as between joint tenants and tenants in common. So, in Massachusetts, assumpsit, as well as account, will lie, if one joint tenant, or tenant in common, receives more than his share of the profits. Brigham v. Eveleth, 9 Mass. Rep. 538.
13. Litt. sec. 311.
14. Litt. sec. 288. Co. Litt. 186. a.
15. Go. Litt. 186. a. According to Mr. Ram, in his Outline of Tenure and Tenancy, p. 149, 150, 151. the only reasonable explanation of the common phrase, that a joint tenant is seized per my et per tout, or by the moiety or half, and by all, is that given in the text, and he says it is the only way in which it ought to be understood. Mr. Preston says Lo the same effect, that joint tenants have the whole for the purpose of tenure and survivorship, while each has only a particular part for the purpose of alienation. Preston on Estates, vol. i. 136.
16. Litt. sec. 280, 281. 286. Co. Litt. ibid.
17. Co. Litt. 185. b.
18. Swift v. Roberts, 3 Burr. Rep. 1438.
19. See. supra. P. 37.
20. Preston on Abstracts, vol. ii. 65.
21. Holt, Ch. J. in Fisher v. Wigg, 1 Salk. Rep. 391.
22. 1 Wils. Rep. 165.
23. Lord Hardwicke, in Rigden v. Vallier, 2 Vesey’s Rep. 258. 3 Atk. Rep. 731. Randall v. Phillips, 3 Mason’s Rep. 378.
24. Lake v. Craddock, 3 P. Wms. 158.
25. Vol. i. 727, sec. 44.
26. The act of Pennsylvania of 3lst of March, 1812, expressly excepts trust estates.
27. Griffith’s Law Register, h. t. Vide the statute laws of the several states on this point. The statute of Massachusetts of 1785, c. 62. declared, that tenancies in common were “more beneficial to the commonwealth, and consonant to the genius of republics.” If here was the dignus vindice nodus, the presence of the genius of republics ought to have produced greater effect, and absolutely prohibited parties from creating, at their own pleasure, joint tenancies, in like manner as statutes prohibit entailments, or perpetuities, or other mischiefs.
28. 2 Blacks. Com. 182. Doe v. Parratt, 5 Term Rep. 652. Mr. Ram, in his Outline of Tenure and Tenancy, (p. 170-174.) differs from all the great property lawyers, and undertakes to establish, by able and subtle arguments, that husband and wife are joint tenants, for their tenancy by entireties is a species of joint tenancy. They are seized per taut, but not per my. In the former sense their persons are several, and in the latter one only. They are joint tenants, and tenants by entireties, because each is seized per tout, and they are called tenants by entireties to distinguish them from the joint tenants seized per my and per tout. This ingenious writer has pushed the subject into unprofitable refinements.
29. Litt. sec. 291. Co. Litt. 187, b. Lord Kenyon, 5 Term Rep. 654. Shaw v. Hearsey, 5 Mass. Rep. 521. Jackson v. Stevens, 16 Johns. Rep. 110. Thornton v. Thornton, 3 Randolph, 179. Den v. Hardenburgh, 5 Halsted, 42. See, also, vol. ii. 112. of the present work.
30. Co. Litt. 187. b. Moody v. Moody, Rmb. Rep. 649.
31. Preston on Abstracts, vol. ii. 41. Ibid. on Estates, vol. i. 132.
32. Litt. sec. 292. 294.
33. Litt. sec. 304.
34. Vol. ii. 315-332.
35. Mussey v. Sanborn, 15 Mass. Rep. 155. Cook v. Allen, 2 Mass. Rep. 462.
36. Harg. note 23. to lib. 3. Co. Litt. Calmady v. Calmady, 2 Vesey, jr. 570. Agar v. Fairfax, 17 Vesey’s Rep. 533. Baring v. Nash, 1 Ves. & Beam. 551.
37. Bishop of Ely v. Kenrick, Bunb. 322. Cartwright v. Pultney, 2 Atk. Rep. 380. Bliman v. Brown, 2 Vern. 232.
38. Wilkin v. Wilkin, 1,Johns. Ch. Rep. 111. Phelps v. Green, 3 Ibid. 302. 4 Randolph, 493. Martin v. Smith, State Eq. Rep. S. C. 106.
39. Vol. ii. 320. sec. 16. Ibid. 329. sec. 79.
40. New York Revised Statutes, vol. ii. 322, sec. 35. 36. Ibid. 330. sec. 84.
41. Ibid. 330. sec. 83.
42. Clarendon v. Hornby, 1 P. Wms. 446.
43. Litt. sec. 241, 242.
44. Preston on Estates, vol. i. 138.
45. Co. Litt. tit. Parceners, 163-175.
46. Vol. i. 753. sec. 17.
47. In Virginia, the statute of descents calls all the heirs, male as well as female, parceners.
48. Litt. sec. 292. 294. 298. 302. 2 Blacks. Com. 192. Preston on Abstracts, vol. ii. 75, 76.
49. Preston on Abstracts, vol. ii. 277.
50. Bartlett v. Harlow, 12 Mass. Rep. 348. Mitchell v. Hazen, 4 Conn. Rep. 495. Griswold v. Johnson, 5 ibid. 363.
51. Bro. tit. Feoffment, pl. 45. Heatherley v. Weston, 2 Wile. Rep. 232.
52. Litt. sec. 311. 314. Co. Litt. ibid. Rehoboth v. Hunt, 1 Pick. Rep. 224. Decker v. Livingston, 15 Johns. Rep, 479.
53. Bro. tit. Feoffment, pl. 45. Butler’s note 80. to Co. Litt. 193. a.
54. Co. Litt. 200. b.
55. Vol. i. 750. sec. 9.
56. See Jones v. Harraden, 9 Mass. Rep. 541. Brigham v. Eveleth, ibid. 538.
57. Co. Litt. 199. b. Fairclaim v. Shackleton, 5 Burr. Rep. 2604. Doe v. Prosser, Cowp. Rep. 217. Peaceable v. Read, 1 East’s Rep. 568.
58. Keay v. Goodwin, 16,Mass. Rep. 1. Clowes v. Hawley, 12 Johns. Rep. 484.
59. F. N B. 127. a. Co. Litt. 54. b. 200. b. Bowles’ case, 11 Co. 32. b.
60. Carver v. Miller, 4 Mass. Rep. 559.
61. Jackson, J., in Doane v. Badger, 12 Mass. Rep. 70. Mumford v. Brown, 6 Cowen’s Rep. 475.