PART II. T. 7, CH. 3. Definition. Uncertainty whether a tenancy in common or in joint tenancy is created. General rule as to words creating a tenancy in common. CHAPTER III. OF AN ESTATE IN COMMON. AN estate in common, or a tenancy in common, is a joint undivided ownership of the same subject of property by two or more persons, created either by such a destruction of an estate in joint tenancy or coparcenary as does not sever the unity of possession, or by a limitation to such persons in a deed or will, expressly as tenants in common, or in terins which import a distinctness of interest in each (a). 646. Where an estate is limited to two or more persons, it is sometimes difficult to determine whether a joint tenancy or a tenancy in common is created, especially where words of survivorship occur. The law, indeed, leans in favour of a tenancy in common rather than a joint tenancy; but, in order to exclude all doubt, it is the most usual, as well as the safest way, when intending to create a tenancy in common, to negative a joint tenancy, as well as to express a tenancy in common; as, to A. and B., to hold as tenants in common, and not as joint tenants (b). 647. Where, however, there are no words expressive of benefit of survivorship, and real or personal estate is devised or bequeathed to two or more persons, and there are any words indicating an intention that the devisees or legatees shall take several and distinct shares in it, they will be (a) See 2 Bl. Com. 191-3; 2 Cruise T. 20, § 3, 7; Litt. s. 298. (b) 2 Bl. Com. 193, 194. See Watk. Conv. 3rd ed. by Prest. 80, 86-7; 6 Cruise T. 38, c. 15; 2 Jarm. Wills, 2nd ed. 205-216; 2 Rop. Leg. by White, c. 21; Moore v. Cleghorn, 10 Beav. 423; Haddelsey v. Adams, 22 Beav. 266, 272 —5; Bryan v. Twigg, L. R. 3 Eq. 433; 3 Ch. App. 183; Ryves v. Ryves, L. R. 11 Eq. 539. Т. 7, Сн. 3. tenants in common (c). As where so much of a sum of PART II. money or residue is given to A., and so much to B., or to them "in equal shares," or "share and share alike;" or where a distinct "share" of either of the legatees is referred to; or where the legacy is given to two or more, "to be divided equally amongst them," or merely "to be divided amongst them, or to them jointly and equally,” or "to and amongst them," or "to them respectively" (d). But where the devise or bequest to the co-devisees or legatees is only for life, and it appears that an ulterior devisee or legatee is not intended to take until the decease of the survivor of the co-devisees or co-legatees, they either take a joint tenancy with its incidental right of survivorship, or a tenancy in common, with an implied gift to the survivors and survivor for life (e). 648. necessary, unity of possession. In this tenancy, the only unity which is essential is that No unity of possession. There either may or may not be a unity except of interest, title, and time. So that one tenant in common may hold his part in fee simple, and another in fee tail. One may take by descent from A. at one time, another by purchase from B. at a different time (f). And if a class of persons, as children, are to take as tenants in common, when one takes in esse, he may take the entirety; and when others are born, the estate will open and admit them to their shares. But if they are to take by way of remainder, they must be capable during the particular estate (g). 649. of interest. Tenants in common have no entirety of interest, but No entirety take by distinct moieties, having distinct undivided freeholds in every part of the lands. Hence, 1. There is no quences as (c) 6 Cruise T. 38, c. 15, § 10; 2 Rop. Leg. by White, 1367; 2 Jarm. Wills, 2nd ed. 211. (d) 2 Rop. Leg. by White, 1367; 2 Jarm. Wills, 2nd ed. 211; Hodges v. Grant, L. R. 4 Eq. 140; Att.-Gen. VOL. I. v. Fletcher, L. R. 13 Eq. 128. (e) 2 Jarm. Wills, 2nd ed. 213, 215; Begley v. Cook, 3 Drewry, 662. (f) 2 Bl. Com. 191, 192; 2 Cruise T. 20, § 2. (g) 2 Pres. Shep. T. 235 S Conse T. 7, CH. 3. regard survivorship and alienation. PART II Survivorship between them. 2. Under the old law, one of them could not transfer any part to the other without livery of seisin, or what was equivalent to it (h). So that they could not release to each other the immediate freehold of lands without previously creating an estate capable of enlargement by release, as by a bargain and sale for a year (i). But now, in consequence of the statutes 4 Vict. c. 21, s. 1, and 7 & 8 Vict. c. 76, s. 2, and 8 & 9 Vict. c. 106, s. 2, a release is sufficient without any prior lease, and, indeed, the immediate freehold will pass by a mere grant (k). 650. Estates held in common are subject to dower and curtesy (). 651. Curtesy and dower. Destruction of estates Estates in common can only be destroyed in two ways: in common. 1. By uniting all the interests in one tenant, by purchase or otherwise, which brings the whole to one estate in severalty. 2. By making partition among the several tenants in common, which gives them estates in severalty (m). 652. Partition. In consequence of the Statute of Frauds (29 Car. 2, c. 3), no legal partition could be made between tenants in common without a writing. And, by the stat. 7 & 8 Vict. c. 76, s. 3, and 8 & 9 Vict. c. 106, s. 3, a deed is necessary to the partition of freehold or leasehold hereditaments. But an agreement in writing to make partition will have the same effect in equity as an actual partition at law (n). 653. A tenant in common can compel a partition by an application to the Court of Chancery or to the County Court (0). 654. (h) 2 Bl. Com. 194; Co. Litt. 188 b; 6 Jarm. & Byth. by Sweet, 589; 2 Cruise T. 23, § 8; and 4 Cruise T. 32, c. 6, § 25. (i) 6 Jarm. & Byth. by Sweet, 589; 4 Cruise T. 32, c. 6, § 25; Watk, Conv. 3rd ed. by Prest. 86, 88. (k) See infra, Part III. T. 12, c. 3, s. 3. (1) 2 Cruise T. 20, § 21, 23. (n) 2 Cruise T. 20, § 26; 6 Jarm. & Byth. by Sweet, 588; and see infra, Part III. T. 12, c. 2, s. 7. (0) See Story's Eq. Jur. § 650657; 31 & 32 Vict. c. 40, s. 12. TITLE VIII. OF LEGAL AND EQUITABLE INTERESTS. TITLE VIII. INTERESTS may be, I. Merely Legal; II. Merely Equitable; PART II. III. Both Legal and Equitable. 655. Division. I. A merely legal interest is such an interest in or Definitions. ownership of real or personal property, as is not of a beneficial, but simply of a possessory and fiduciary character. 656. II. A merely equitable interest is a beneficial interest in or a beneficial ownership of real or personal property, unattended with the possessory and legal ownership thereof. 657. III. An interest both legal and equitable is an interest in or ownership of real or personal property, which confers a right both to the possession and to the beneficial enjoyment of such property, as well at law as in equity. 658. kinds of The possession spoken of here and in many other places, Different may be either personal or by substitute, as by one's termor possession. for years, whose interest, though not connected in title with our own, is not inconsistent with it. Or it may be either actual, where the land is occupied by one's self or one's bailiff, or virtual, where it is occupied by one's tenant for years, or by a termor for years whose title is consistent with our own. Or it may be either executed, as where the land is occupied by one's self or one's bailiff, or executory, as in the case of a remainderman or reversioner during the continuance of the particular estate of freehold, or of the heir before entry (a). 659. (a) Smith's Executory Interests annexed to Fearne, § 49. PART II. Т. 8, Сн. 1. How legal CHAPTER I. OF LEGAL INTERESTS; AND HEREIN OF USES. LEGAL interests, which we have already defined, may be created in various ways, of which we propose to treat in interests are the Third Part of this work. One of these ways is by limitation of uses. 660. created. "Use" and "trust." Origin of uses and trusts. Originally, the terms use and trust were perfectly synonymous; uses at common law being in most respects what trusts are now; and the terms use and trust are both employed in the Statute of Uses to denote the same thing (a). But, in consequence of that statute operating so as to execute or convert some uses into legal interests, but not others, an essential distinction now exists between uses and trusts. Those which the statute executes, and sometimes also some of those uses which it does not execute, and which are in reality trusts, are still called uses; while the term trusts is applied to those uses which the statute does not execute, and is never properly applied to those which the statute does execute. A use executed by the statute is a legal estate or interest. A use before the Statute of Uses was, and a trust, as distinguished from a use, now is, an equitable estate or interest. These distinctions will be more fully unfolded by the observations which follow in this and the next chapter. 661. At the common law, the beneficial ownership (that is, the right to the rents and profits, and the power of disposing of the estate) was inseparably annexed to the possessory and legal seisin or ownership (b). But the ecclesiastics, (a) 1 Cruise T. 12, c. 1, § 2; Co. (b) See 1 Cruise T. 11, c. 1, § 1. Litt. 271 b, n. (1), II. |