date respectively on or about the 2nd day of March last, and made or expressed to be made between the said George B. of as if one coparcener entered into and made a feoffment of the whole estate, this divested the freehold in law out of the other coparcener. (Co. Litt. 243. b., 347. a.) Disputes frequently arose as to how far the possession of one tenant in common was to be considered as that of the other, and what acts of one amounted to actual ouster of the other. Actual ouster did not necessarily mean an act accompanied by real force, and a turning out by the shoulders. A man might come in by a rightful possession, and yet his holding might, under circumstances, become equivalent to an actual ouster. In the case of tenants in common, the possession of one as tenant in common never barred his companion, because it was not adverse, but in support of their common title, and payment of his share of the rent acknowledged him to be co-tenant, and a mere refusal to pay was not of itself sufficient to bar the title of the other. But if upon demand of payment by one tenant, the other not only refused to pay, but denied the title and claimed the whole, and continued in possession, it was considered an ouster. An undisturbed possession for forty years by one tenant in common, where there was no evidence of any account having been demanded, or of any payment of rent, or of any claim by the lessors of the plaintiff, or of any acknowledgment of title in them, or in those under whom they claimed, was held sufficient ground for a jury to presume an actual ouster. (Doe v. Prosser, Cowp. 217.) So, where one tenant in common, in possession claimed the whole, and denied possession to the other, it was held evidence of an ouster of his companion. (Doe dem. Hellings v. Bird, 11 East, 49.) But the bare receipt of rent for twenty-six years by one tenant in common, without accounting for it to the other, was held no evidence of ouster. (Fairclaim v. Shackleton, 5 Burr. 2604.) Where there were two joint-tenants of a lease for years, and one required the other to quit the house, and he did so, this was held to be an actual ouster. (Beverley's Case, Clayt. 3.) ; but see Anon. Ibid. 121. contrà Vin. Abr. Jointtenants (P. a.). Where a testator devised an estate to his brother and sister for their lives and the life of the survivor, and after their decease to John H., E. C., and S. H., (their children,) as tenants in common in fee, the survivors of the devisees for life died in 1777, and S. H., one of the devisees in remainder, continued afterwards to reside on the premises devised. John H., another of the devisees in remainder, died in Nov. 1790, having devised his freehold estates to his wife for life, and after her decease to his three daughters. By indentures made in the years 1791 and 1792, James H., described as heir at law of John H., his brother, deceased, and the other two devisees in remainder named in the will of the original testator, covenanted to levy a fine of the devised premises, to enure to the use of such persons as they should appoint; and afterwards, by indenture reciting that a fine had been levied, appointed the premises to P. in fee, who in 1792 entered thereupon, and continued from thenceforth in undisturbed possession of the whole. It was held in an ejectment brought against P. by the heir at law of one of John H.'s daughters, (which daughter, on the death of her mother, the and severing the jointtenancy. the one part, and the said C. D. of the other part, it is by the said Indenture of release witnessed, that for the considerations therein expressed, the said George B. did grant, bargain, sell and release unto the said C. D., all that the undivided moiety or equal half part or share of him the said George B. of and in all and singular the said messuages or tenements, lands and hereditaments devised by the said recited will of the said James B., deceased, TO HOLD the same with the appurtenances unto the said C. D., his heirs and assigns, To the use of the said C.D., his heirs and assigns for ever (b): AND WHEREAS the said purchase of one [purchaser] hath contracted and agreed with the said A. B. Contract for moiety, tenant for life under the will of John H., was under coverture), that the deeds of 1791 and 1792, under which P. claimed, were, as against him, evidence of the seisin of John H. at the time of making his will and of his death; and that, independently of those deeds, the seisin of S. H., the co-tenant in common, being the seisin of John H., there was no ground for presuming an ouster of John H. (Doe dem. Thorn v. Phillips, 3 B. & Ad. 753.) Where one tenant in common levied a fine of the whole estate, and received the rents for nearly five years afterwards without account, it was held not sufficient to warrant a direction to the jury, against the justice of the case, to find an actual ouster of the companion, so as to require an actual entry to avoid the fine. (Peaceable d. Hornblower v. Read, 1 East, 568.) So an actual entry was not required by one tenant in common to avoid a fine levied by the other of the reversion of the whole estate, as there could be no actual ouster of the reversion. (Doe v. Elliot, 1 B. & Ald. 85.) The confession of ouster in the consent rule, being sufficient proof of actual ouster in an ejectment by one tenant in common, &c. against another (Oates d. Wigfall v. Brydon, 3 Burr. 1895.; Doe d. White v. Cuffs, 1 Camp. 173.), it is usual in such cases to enter into a special rule confessing lease and entry only, which may be done upon the defendant's showing by affidavit that he is tenant in common with the lessor of the plaintiff, and denying actual ouster. (Doe d. Gigner v. Roe, 2 Taunt. 397. See Tidd's Pr. 547.; Roscoe, On Real Actions, 574.) (b) Another important consequence of the union of interest and possession in joint-tenants was, the doctrine of survivorship, as pointed out in the last note. One of the modes by which a joint-tenancy may be destroyed is, by a destruction of the unity of title, as for instance, in such manner as is recited in the text, namely, by the alienation or conveyance by one joint-tenant to a stranger, by which the joint-tenancy was severed and turned into a tenancy in common, and immediately upon such severance, A. B. and C. D., became tenants in common of the lands in question ::-" If a man enfeoff two joint-tenants in fee, and the one of them alien that which to him belongs to another in fee, the alienee and the other joint-tenant are tenants in common, because they are in such tenements by several titles, for the alienee comes to the and of other moiety. Purchaser de sires premises to be conveyed as after mentioned. Witness; consideration of two sums, for the absolute purchase of the undivided moiety, or equal half part or share of him the said A. B. of and in the messuages or tenements, lands and hereditaments devised by the said recited will, and hereinafter particularly mentioned and described, and the inheritance thereof as fee-simple, free from all incumbrances, at or for the price or sum of 500l.: AND WHEREAS the said [purchaser] hath contracted or agreed with the said C. D. for the absolute purchase of the undivided moiety, or equal half part or share of him, the said C. D., of and in the said messuages or tenements, lands and hereditaments, and the inheritance thereof, in fee-simple, free from all incumbrances, at or for the price or sum of 500l.: AND WHEREAS the said [purchaser], is desirous that the said messuages or tenements, lands and hereditaments should be conveyed to the uses and in manner hereinafter mentioned: Now THIS INDENTURE WITNESSETH, that in pursuance and per- Vendors, in formance of the said agreement, and in consideration of the aggregate (c) sum of 1000l. of lawful money of the United Kingdom of Great Britain and Ireland, by the said [purchaser], in hand, well and truly paid to the said A. B. and C. D., at or immediately before the sealing and delivery of these presents in the proportions following, (that is to say) the sum of 5007. of like lawful money to the said A. B., and the sum of 5007. of like lawful money to the said C. D., (the receipt of which said sum of 500l. and 500l. they the said A. B. and C. D. do hereby respectively acknowledge, and of and from the same and every part thereof, do acquit, release, and discharge the said [purchaser], his heirs, executors, administrators, and assigns, and every of them, for ever by these presents,) Each of them the said A. B. and C. D. HATH granted, bargained, sold, aliened, released, and confirmed, and by these presents DOTH grant, bargain, sell, alien, release, and confirm unto the said [purchaser], (in his actual possession now being by virtue of bargain and sale to him thereof made by the said A. B. and a moiety by the feoffment of one of the joint-tenants, and the other jointtenant has the other moiety by force of the first feoffment to him and to his companion. And so they are in by several titles, that is to say, by several feoffments." (Litt. s. 292.) (c) See note (g), post, page 266. as to the consideration being thus stated. convey their lands. moieties in the Reference to the lease for a year. C. D., in consideration of 5s., by an Indenture bearing date the day next before the day of the date of these presents for the term of one whole year, commencing from the day next before the day of the date of the said Indenture of bargain and sale, and by force of the statute made for transferring uses into possession), and his heirs, ALL that the undivided moiety or equal half part or share of him the said A. B. and of him the said C. D. respectively, of and in ALL that &c., General words. [parcels], And also of and in all and singular houses, outhouses, edifices, buildings, barns, stables, coachhouses, cottages, yards, gardens, orchards, backsides, tofts, lands, meadows, pastures, commons, common of pasture, common of turbary, mines, minerals, quarries, furzes, trees, woods, underwoods, coppices, and the ground and soil thereof, mounds, fences, hedges, ditches, ways, waters, watercourses, liberties, privileges, easements, profits, commodities, emoluments, hereditaments, and appurtenances whatsoever to the said messuages or tenements, and lands, belonging, or in any wise appertaining, or with the same, or any of them respectively, now or at any time heretofore demised, leased, held, used, occupied, or enjoyed, or accepted, reputed, deemed, taken, or known as a part, parcel, or member of them, or any part of them, or appurtenant thereunto, with their and every of their appurtenances; And the reversion and reversions, remainder and remainders, yearly and other rents, issues, and profits of each of them the said A. B. and C. D., for or in respect of his undivided moiety or equal half part or share of all and singular the messuages or tenements, hereditaments and premises hereby granted and released, and intended so to be; And all the estate, right, title, interest, reversion, use, trust, possession, property, claim, and demand whatsoever, both at law and in equity, of him the said A. B. and the said C. D. or either of them, of, in, and to the same premises, To hold to uses and every part and parcel thereof; TO HAVE AND TO HOLD (d), And the reversion, &c. And all the estate, &c. to bar dower. (d) We have seen that the property conveyed by this instrument was under the recited will held in joint-tenancy, that afterwards, by the recited conveyance from George B. to C. D. the jointure was destroyed, and that thereupon A. B. and C. D. held as tenants in common; by this deed, however, the quality of the estate is again changed, and the purchaser holds in severalty. He that holds lands or tenements in seve the said messuages or tenements, lands, hereditaments, and all and singular other the premises hereby granted and released, or expressed and intended so to be, with their appurtenances, unto the said [purchaser], his heirs and assigns, To such uses, upon and for such trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, agreements, and declarations, as the said [purchaser] shall by any deed or deeds, writing or writings, with or without power of revocation and new appointment, to be by him sealed and delivered in the presence of, and attested by, two or more credible witnesses, from time to time direct, limit, or appoint; And for default of and until such direction, limitation, or appointment, and so far as no such direction, limitation, or appointment shall extend, To the use, of the said [purchaser] and his assigns, during his life, without impeachment of waste, and after the determination of that estate by forfeiture or otherwise in his lifetime, To the use of the said [trustee to bar dower], and his heirs, during the joint lives (e) of the said [purchaser] and Elizabeth his wife, In trust for him the said [purchaser], and his assigns, during the joint lives of him the said [purchaser] and Elizabeth his said wife, and to prevent the said Elizabeth, the said wife of the said [purchaser], from being entitled to her dower out of or in the said premises, or any part thereof; And after the estate so limited in use to the said [trustee] and his heirs, during the joint lives of the said [purchaser] and Elizabeth his wife as aforesaid, To the use of the said [purchaser], his heirs and assigns for ever. And the said A. B. (ƒ) as to one equal Covenants for ralty, 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 in point of interest, during his estate therein. This is the most common and usual way of holding an estate. (Bl. Com. book ii. c. 12.) (e) As to the effect of this limitation to the trustee to bar dower being confined to the joint lives of the husband and wife, see ante, page 62. note (c). (f) It will be observed that as one moiety, namely, that of A. B., the covenants are not only against his own acts, but also against those of the testator, but that as to the other moiety, C. D. covevenants only against his own acts. The reason for this distinction is, that A. B. claims by descent, and C. D. by purchase. (See ante, pages 32 and 33. note (b), and p. 41. note (g).) title. |