CHAPTER VIII.

OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION.

I. Estates in possession.II. Estates in remainder-Executory deviseɛ.III. Estates in reversion-Incidents thereof-Merger.

WE are now to consider estates in another view; viz., with regard to the time of their enjoyment, and in this legal way they may be regarded as, 1, in possession, or, 2, in expectancy: and of expectancies there are two sorts; one created by the act of the parties, called a remainder; the other by act of law, and called a reversion.

I. Of estates in possession there is little or nothing peculiar to be observed. All the estates we have hitherto spoken of are of this kind; for, în laying down general rules, we usually apply them to such estates as are then actually in the tenants' possession.

II. An estate in remainder may be defined to be, an estate limited to take effect and be enjoyed after another estate is determined. As if a man seised in fee-simple granteth lands to A for twenty years, and, after the determination of the said term, then to B and his heirs for ever: here A is tenant for years, remainder to B in fee. In the first place, an estate for years is created or carved out of the fee, and given to A; and the residue or remainder of it is given to B. But both these interests are in fact only one estate; the present term of years and the remainder afterwards, when added together, being equal only to one estate in fee. They are indeed different parts, but they constitute only one whole: they are carved out of one and the same inheritance: they are both created, and may both subsist, together; the one in possession, the other in expectancy.

In the creation of a remainder by deed much nicety is required; but it is not within our scope of these elementary commentaries to explain the particular subtilties and refinements into which this doctrine of remainders has, by the variety of cases which have occurred in the course of many centuries, been spun out and subdivided. I must not, however, omit, that in devises by last will, which being often drawn up when the party is inops consilii, are always more favoured in construction than formal deeds, which are

presumed to be made with great caution, forethought, and advice, in these devises, I say, remainders may be created in some measure contrary to the first rules of law: though our lawyers will not allow such dispositions to be strictly remainders; but call them by another name, that of executory devises, or devises hereafter to be executed.

III. An estate in reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him. As, if there be a gift in tail, the reversion of the fee is, without any special reservation, vested in the donor by act of law: and so also the reversion, after an estate for life, years, or at will, continues in the lessor. For the fee-simple of all lands must abide somewhere; and if he, who was before possessed of the whole, carves out of it any smaller estate, and grants it away, whatever is not so granted remains in him. A reversion is never therefore created by deed or writing, but arises from construction of law; a remainder can never be limited, unless by either deed or devise. But both are equally transferable, when actually vested, being both estates in præsenti, though taking effect in futuro.

The usual incidents to reversions are said to be fealty and rent. When no rent is reserved, fealty results of course, as an incident quite inseparable; and may be demanded as a badge of tenure, or acknowledgment of superiority; being frequently the only evidence that the lands are holden at all. Where rent is reserved, it is also incident, though not inseparably so, to the reversion. The rent may be granted away, reserving the reversion; and the reversion may be granted away, reserving the rent; by special words: but by a general grant of the reversion, the rent will pass with it, as incident thereunto, though by the grant of the rent generally, the reversion will not pass.

Before we conclude the doctrine of remainders and reversions, it may be proper to observe that whenever a greater estate and a less coincide and meet in one and the same person without any intermediate estate, the less is immediately annihilated; or in the law phrase, is said to be merged, that is, sunk or drowned in the greater. Thus if there be tenant for years, and the reversion in fee-simple descends to or is purchased by him, the term of years is merged in the inheritance, and shall never exist any more. But they must come to one and the same person in one and the ame right; thus, if the freehold be in his own right, and he has a term in right of another, en auter droit, there is no merger. An estate-tail, it must be recollected, is an exception to this rule: for a man may have in his own right both an estate-tail and a reversion in fee; and the

estate-tail, though a less estate, shall not merge in the fee, heing protected and preserved from merger by the construction, though not by the express words, of the statute De Donis: on which, indeed, all such estates depend for their existence.

CHAPTER IX.

OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY,

AND COMMON.

1. Severalty.II. Joint-tenancy-How created-Its properties and incidents Survivorship.- -III. Coparcenary-How created-Its incidentsHow dissolved.IV. Tenancy in common-How created-Its incidents -Partition.

ESTATES, considered with respect to the number and connections of their owners, whatever be their nature, and whether they be in possession or expectancy, may be held in four different ways: in severalty, in joint-tenancy, in coparcenary, or in common.

I. 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 usual way of holding an estate; and there is, therefore, nothing to be remarked concerning it, since all estates are supposed to be of this sort, unless where they are expressly declared to be otherwise.

II. An estate in joint-tenancy is where lands or tenements are granted to two or more persons, to hold in fee-simple, fee-tail, for life, for years, or at will.

Its creation 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 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: unity of interest, unity of title, unity of time, and the unity of possession.

Joint-tenants must have one and the same interest. One 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. They must also have an unity of title; their estate must be created by one and the same act. 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, there would be no jointure. 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. Lastly, in joint-tenancy there must be an unity of possession; for joint-tenants are said to be seised per my et per tout, by the moiety and by all: that is, they each of them have the entire possession, as well of every parcel as of the whole. They have not, one of them, a seisin of one-half or moiety, and the other of the other moiety; neither can one be exclusively seised 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.

Upon these principles depend many other consequences and incidents to the joint-tenants' estate. Thus, if two joint-tenants let a verbal lease of their land, reserving rent to be paid to one of them, iț shall enure to both, in respect of the joint reversion; and if their lessee surrenders his lease to one of them, it shall enure to both, because of the privity of their estate. In all actions relating to their joint estate, one joint-tenant cannot sue or be sued without joining the other. Neither can one joint-tenant have an action against the other for trespass, in respect of his land, for each has an equal right to enter on any part of it. Yet 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. So the one may maintain a suit against the other for receiving more than his due share of the profits. And so one joint-tenant may maintain ejectment against the other, if he can show any actual ouster, as if one were to retain the whole of the rents.

From the same principle also arises another incident of joint estates, viz., survivorship; by which the tenancy, upon the decease of any of the joint-tenants, remains to the survivors, and at length

to the last survivor, who is then entitled to the whole estate. This right 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. But it is to be noted that 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. This jus accrescendi also ought to be mutual, and therefore neither the king, nor any corporation, 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.

Joint-tenancy may be destroyed without any alienation, by merely disuniting the possession. And, therefore, if the joint-tenants agree to part their lands, and hold them in severalty, they are no longer joint-tenants, and the right of survivorship is at once destroyed. At common law all the joint-tenants might agree to make partition of the lands, though one of them could not compel the others so to do; but a partition may now be enforced by the Court of Chancery; or effected much more easily and expeditiously through the medium of the Inclosure Commissioners. The joint-tenancy may also be destroyed by destroying the unity of title; as if one joint-tenant conveys his estate to a third person: here the joint-tenancy is severed, and turned into tenancy in common; for the grantee and the remaining joint-tenant hold by different titles, though, till partition made, the unity of possession continues. Joint-tenancy 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. So that 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, apd 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; which in general it is advantageous to effect, since thereby the right of survivorship is taken away, and each may transmit his own part to his own heirs.

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 seised in fee-simple, or in fee-tail dies, and his next heirs are two or more females; in this case they shall all inherit, as will