the like cafes, their iffues fhall be tenants in common; because they muft claim by different titles, one as heir of A, and the other as heir of B; and those too not titles by purchafe, but descent. In fhort, whenever an eftate in joint- [193] tenancy or coparcenary is diffolved, fo that there be no partition made, but the unity of poffeffion continues, it is turned into a tenancy in common. A TENANCY in common may also be created by exprefs limitation in a deed: but here care must be taken not to infert words which imply a joint eftate; and then if lands be given to two or more, and it be not joint-tenancy, it must be a tenancy in common. But the law is apt in it's conftructions to favour joint-tenancy rather than tenancy in common"; because the divifible fervices iffuing from land (as rent, &c.) are not divided, nor the entire fervices (as fealty) multiplied, by joint-tenancy, as they must neceffarily be upon a tenancy in common. Land given to two, to be holden the one moiety to one, and the other moiety to the other, is an estate in common"; and, if one grants to another half his land, the grantor and grantee are alfo tenants. in common: because, as has been before obferved, jointtenants do not take by diftinct halves or moieties; and by fuch grants the divifion and feveralty of the eftate is fo plainly expreffed, that it is impoffible they fhould take a joint intereft in the whole of the tenements. But a devife to two perfons to hold jointly and severally, is faid to be a jointtenancy; because that is neceffarily implied in the word "jointly," the word "feverally" perhaps only implying the power of partition: and an eftate given to A and B, equally to be divided between them, though in deeds it hath been faid to be a joint-tenancy, (for it implies no more than the law has annexed to that cftate, viz. divifibility b) yet in wills it is certainly a tenancy in common; becaufe the devifor may be prefumed to have meant what is moft beneficial to both Salk. 392. w Litt. § 298. * Ibid. 299. Y See p. 192. z Poph. 52. a Equ. Caf. abr. 291. br P. Wins. 17 3 Rep. 39. 1 Ventr. 32. the : Book II. the devifees, though his meaning is imperfectly expreffed (8). And this nicety in the wording of grants makes it the most usual as well as the safest way, when a tenancy in common is meant to be created, to add exprefs words of exclusion as [194] 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 ftatutes of Henry VIII and William III, before-mentioned, to make partition of their lands; which they were not at common law. They properly take by diftinct moieties, and have no entirety of intereft; and therefore there is no furvivorship between tenants in common. Their other d pag. 185, & 189. (8) In ancient times joint-tenancy was favoured by the courts of law, because it was more convenient to the lord and more confiftent with feudal principles; but those reasons have long ceased, and a joint-tenancy is now every where regarded, as lord Cowper fays it is in equity, as an odious thing. 1 Salk. 158. In wills the expreffions equally to be divided, share and bare alike, respectively, between, and amongst, have been held to create a tenancy in common. 2 Atk. 121. 4 Bro. 15. 1 Cox's P. Wms. 14. I should have little doubt but the fame conftruction would now be put upon the word severally, which feems peculiarly to denote feparation or divifion. But those words are only evidence of intention, and will not create a tenancy in common, where the contrary from other parts of the will appears to be the manifeft intention of the teftator. 3 Bro. 215. The words equally to be divided make a tenancy in common in furrenders of copyholds, and alfo in deeds, which derive their operation from the ftatute of ufes. 1 P. W'ms. 14. 1 Wilf. 341. 2 Vef. 257. And though lord Hardwicke feems to be of opinion in 1 Vef. 165. 2 Vej. 257. that these words are not fufficient to create a tenancy in common in common law conveyances, yet I am inclined to think, that in fuch a cafe, nothing but invincible authority would now induce the courts to adopt that opinion, and to decide in favour of a joint-tenancy. incidents incidents are fuch as merely arife from the unity of poffeffion; and are therefore the fame as appertain to joint-tenants merely upon that account: fuch as being liable to reciprocal actions of waste, and of account, by the ftatutes of Weftm. 2. c. 22. and 4 Ann c. 16. For by the common law no tenant in common was liable to account with his companion for embezzling the profits of the eftate; though, if one actually turns the other out of poffeffion, an action of ejectment will lie against him (9). But, as for other incidents of joint-tenants, which arife from the privity of title, or the union and entirety of intereft, (such as joining or being joined in actions, unless in the cafe where fome intire or indivifible thing is to be recovered) thefe are not applicable to tenants in common, whofe interefts are distinct, and whofe titles are not joint but feveral. f ESTATES in common can only be diffolved two ways: 1. By uniting all the titles and interefts in one tenant, by purchase or otherwife; which brings the whole to one feveralty: 2. By making partition between the several tenants in common, which gives them all refpective severalties. For indeed tenancies in common differ in nothing from fole eftates but merely in the blending and unity of poffeffion. And this finishes our inquiries with refpect to the nature of eftates. (9) But adverfe poffeffion, or the uninterrupted receipt of the rents and profits, is now held to be evidence of an actual oufter. And where one tenant in common has been in undisturbed poffe(fion for twenty years, in an eject ent brought against him by the co-tenant, the jury will be directed to prefume an actual oufter, and confequently to find a verdict for the defendant. Corup. 217. VOL. II. CHAPTER THE THIRTEENTH, OF THE TITLE TO THINGS REAL, IN GENERAL. HE foregoing chapters having been principally employ TH ed in defining the nature of things real, in describing the tenures by which they may be holden, and in distinguishing the several kinds of eftate or interest that may be had therein; I come now to confider, laftly, the title to things real, with the manner of acquiring and lofing it. A TITLE is thus defined by fir Edward Coke 2, titulus eft jufta caufa poffidendi id quod noftrum eft; or, it is the means whereby the owner of lands hath the juft poffeffion of his property. THERE are feveral ftages or degrees requifite to form a complete title to lands and tenements. We will confider them in a progreffive order. I. THE lowest and most imperfect degree of title consists in the mere naked poffeffion, or actual occupation of the eftate; without any apparent right, or any fhadow or pretence of right, to hold and continue fuch poffeffion. This may happen, when one man invades the poffeffion of another, and by force or furprize turns him out of the occupation of his lands; which is termed a diffeifin, being a deprivation of that actual feifin, or corporal freehold of the lands, which the tenant before enjoyed. Or it may happen, that after the death of the ancestor and before the entry of the heir, or a 1 Inft. 345. after after the death of a particular tenant and before the entry of him in remainder or reverfion, a ftranger may contrive to get poffeffion of the vacant land, and hold out him that had a right to enter. In all which cafes, and many others that might be here fuggefted, the wrongdoer has only a mere naked poffeffion, which the rightful owner may put an end to, by a variety of legal remedies, as will more fully appear in the third book of these commentaries. But in the mean time, till some act be done by the rightful owner to devest this poffeffion and affert his title, fuch actual poffeffion is, prima facie, evidence of a legal title in the poffeffor; and it may, by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title. And, at all events, without fuch actual poffeffion no title can be completely good. yet II. THE next step to a good and perfect title is the right of poffeffion, which may refide in one man, while the actual poffeffion is not in himself but in another. For if a man. be diffeifed, or otherwife kept out of poffeffion, by any of the means before-mentioned, though the actual poffefsion be loft, he has still remaining in him the right of poffeffion; and may exert it whenever he thinks proper, by entering upon the diffeifor, and turning him out of that occupancy which he has fo illegally gained. But this right of poffeffion is of two forts: an apparent right of possession, which may be defeated by proving a better; and an actual right of poffeffion, which will ftand the teft against all opponents. Thus if the diffeifor, or other wrongdoer, dies poffeffed of the land whereof he fo became feifed by his own unlawful act, and e fame defcends to his heir; now by the common law the heir hath obtained an apparent right, though the actual right of poffeffion refides in the perfon diffeised; and it fhall not be lawful for the perfon diffeifed to deveft this apparent right by mere entry or other act of his own, but only by an action at law : for, until the contrary be proved by legal demonstration, the law will rather presume the right to |