may devote their property, and the various engagements which in law may attach to it in consequence of such devotion, it is not our intention to treat. This book is an attempt to state the law of co-ownership existing by reason of such ownership, independent of the relation of copartnership and of all other relations and agreements entered into by the parties for the purpose of creating rights or imposing obligations not otherwise attached to their cotenancy.

24. Plan of the Work.-In treating of the law of coownership, we shall consider, 1st, the several kinds of cotenancy, the rules of law peculiar to each, and the tests by which each may be distinguished from the others; 2d, that portion of the law upon this subject having a general applicability to the various forms of co-ownership, and embracing the following subjects: conveyances and leases by cotenants; ouster of one cotenant by another; the relations, rights, and liabilities of cotenants among one another; the legal and equitable remedies by which those rights may be secured and those liabilities enforced; the rights and liabilities of cotenants as against third persons, and the legal and equitable remedies which may be employed by and against cotenants; 3d, the means by which a cotenancy may be changed into one or more estates in severalty, including all the various forms of severance and partition.

25. English Tenures.-All land in England, excepting Crown land, not tenanted, "was supposed to be holden of some superior lord, by and in consideration of certain services to be rendered to the lord or possessor of this property. The thing holden is therefore styled a tenement, the possessors thereof tenants, and the manner of their holding a tenure."1 The tenure by which the lands in England were held was “a branch of the feudal system, established by the Germans in many of the Roman provinces on the decline of the Empire. By the theory of that system, the whole of a territory which the Germans conquered, immediately became, in a qualified manner, the property of their general, who was intrusted with

12 Bl. Comm. 59; 1 Greenl, Cruise, 23.

the important prerogative to divide the land as he pleased amongst himself and followers. In effect, the parting of the land reached two objects: it rewarded the soldiers for their past, and beforehand gave them the wages of their future service; yet, in theoretical strictness, the latter alone was the object of a feudal gift. The chief gave, and the soldier took, the land for future service. A gift of this kind created a tenancy. The soldier took the land to hold to his chief as landlord, and thus became his tenant. To strengthen the bond between them, and establish the relative duties of lord and tenant, the tenant afterwards bound himself by an oath to do the prescribed services of the feud, and to be true to his lord for the land he held of him. In the same way, the tenants became the lords of others, by again parting their lands to be held of themselves by feudal services; and thus a chain of subordinate and connected landed interests was made to depend from the head of the community, and to extend to a great proportion of the subjects."

8 6. American Tenures.-In England, the original acquisition of title to lands was by conquest; in America, it was by discovery. All the European nations that ever obtained a footing upon American soil recognized the right of discovery, as entitling the sovereignty by whose subjects the discovery was made to an absolute dominion and ownership over the lands discovered. By virtue of this right, the Crown of England was invested with the title to most of the lands within the present boundaries of the United States." "It is now a settled and fundamental doctrine, that all valid individual title to land within the United States is derived from the grant of our own local governments, or from that of the United States, or from the Crown, or the royal chartered provincial governments. This great feudal principle, that all lands are held of the sovereign, being thus acknowledged, the remark of Lord Coke seems in strictness to apply as justly to the United States as to England, we having no lands which are properly allodial, that is, which are not holden."

Ram. on Tenure and Tenancy, 1, 2.

2 Johnson v. McIntosh, 8 Wheat., 543.

1 Greenl. Cruise, note to p. 19; 3 Kent's Comm. 378; Jackson v. Ingraham, 4 Johns. 163; DeArmas v. Mayor of N. Orleans, 5 La. R. 132; Jackson v. Waters, 12 Johns. 365.

But in some of the United States, statutes have been enacted declaring all their lands allodial. By these declarations, it is probable, nothing was meant to be affirmed except that the lands were to be "free from all feudal burdens and exactions, except those due to the State, and not as intended to change any of the established rules of acquiring and transmitting real property.' 7." But in none of the States is there anything beyond a mere theoretical holding from a superior sovereignty. Practically, all lands are held by allodial title. Real estate, as much as personal property, is the subject of absolute ownership. It is not therefore a very accurate use of language to characterize the several persons who together own a thing as "tenants," nor their estate as a "tenancy." But the language of the common law has been so uniformly adopted in this country, both by judges and text-book writers, that we shall follow their example, and hereafter designate the several kinds of co-ownership by the same terms by which they are known in the common law; and shall use the term cotenancy to indicate the ownership of property by two or more in undivided interests.

87. Classification of Tenancies.-The most approved writers upon the common law assert that, with respect to the number and connection of their owners, lands and tenements may be held in four different ways, namely, in severalty, in joint tenancy, in coparcenary, and in common. This classification ignores a tenancy which is treated at length in all the commentaries on the common law, and which still exists in England and in nearly all the United States, namely, tenancy by entireties. In the progress of this work, we shall have occasion to treat of still another species of co-ownership, one adopted in Lower Canada and in a few of the States of the American Union, namely, the Communio Bonorum, or community of property between husband and wife.

8 8. Mixed, Imperfect, and Redundant Tenancies.-It must not be inferred from what has been said, that every

1 Note to p. 19 vol. 1 Greenl. Cruise.

2 Bl. Comm., 179; 2 Greenl. Cruise, 351.

tract of land not held in severalty must therefore be subject to but one of the several cotenancies already named. It may be held by a mixed cotenancy, in which may be united all the common law cotenancies. Thus, if an estate be granted to A, B, and C and wife, it vests in them as jointtenants-A having one moiety, B another, and C and wife the other. But as between C and his wife, their moiety is by them held as tenants by entireties. If, however, A should convey his moiety to D, then the estate would be held as follows: by D as a tenant in common, by B as a joint-tenant, and by C and wife as tenants by entireties. So lands conveyed to a husband and wife may be the separate property of the husband so far as his separate estate contributed to their purchase, the separate property of the wife to the extent of the funds furnished by her, and the common property of both so far as they were paid for out of the community assets. A cotenancy may also be either imperfect or redundant: imperfect when it exists without some of the incidents usually connected with like tenancies, as in case of a joint-tenancy without the right of survivorship;1 redundant when it possesses some attribute not ordinarily possessed by like tenancies, as in case of a tenancy in common to which the right of survivorship is attached."

1 Doe v. Abey, 1 Maule & S., 428.

"Shanks v. Chambless, Walker, Miss., 249.



Definitions by Littleton and Blackstone, § 9.

Definitions by Kent and Preston, § 10.

Properties, § 11.

Survivorship, 12

Survivorship in Equity, § 13.

Survivorship is Paramount to Dower and Curtesy, § 14.

Who may be Joint-Tenants, § 15.

What may be held in Joint-Tenancy, § 16.

Created by Joint Purchase, & 17.

Presumption in regard to Creation, § 18.

Presumption when Property is acquired in Trade, § 19.
Presumption from Inequality in Purchase Money, § 20.
Presumption of Joint-Tenancy rebutted by Parol, § 21.
Establishing Joint-Tenancy by Parol, § 22.

Creating by Devise or Bequest, § 23.

Cases where Devises have been regarded as Joint, § 24.
Creation by Deed, § 25.

Creation by Deed to Woman and her Children, § 26.

Executory Settlements, § 27.

Devise or Bequest in Joint-Tenancy does not Lapse on Death of one, § 28. Severance, means of, § 29.

Severance by act of either Cotenant, § 30.

Severance by Mutual Agreement, § 31.

Severance by a Course of Dealing, § 32.

Severance by Process against a Tenant, § 33.

Severance by one may leave the others Joint-Tenants, § 34.


Statutes Limiting or Abolishing, § 35.

Statutes Retroactive, § 36.

Creation, notwithstanding Statutes, § 37.

Not forbidden by Law, § 38.

Dower, where Survivorship is Abolished, § 39.

Lapsing of Legacies and Devises, § 40.

To what kinds of Property Joint-Tenancy may still apply, § 42.

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Co-Trustees under American Statutes, § 43.

Co-Trustees are Joint-Tenants at Common Law, § 44.

Co-Trustees, Estate of, vests in those who Accept, § 45.
Co-Executors and Co-Administrators, § 46.

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