retained. It should also be remembered that each joint-tenant has, by the operation of the law of survivorship, an equal chance with his cotenant of succeeding to the entire estate. Survivorship has, perhaps, never been more ably defended than by the Master of the Rolls when, in the case of Cray v. Williams,' he said: "Neither is there anything unreasonable or unequal in the law of joint-tenancy, each having an equal chance to survive; and the duration of all lives being uncertain, if either party has an ill opinion of his own life, he may sever the joint-tenancy by a deed granting over a moiety in trust for himself; so that survivorship can be no hardship where either side may, at pleasure, prevent it."

14. Survivorship is Paramount to Dower and Curtesy and to Rights of Devisees.-At the death of a joint-tenant, his cotenants are instantly seized of the whole estate. Neither the heirs, nor any other persons claiming under the deceased cotenant, have any claim to his former interest in the estate, unless there has been some act of severance sufficient to change the nature of the tenancy and to subvert the whole right of survivorship. "The mere possibility of the estate being defeated by survivorship prevents the wife from having any dower." The reason for this is, "for that the jointenant, which surviveth, claimeth the land by feoffment, and by survivorshippe, which is above the title of dower."3 Dower in the lands of joint-tenants is in Mississippi allowed by statute.1 The same reasons which exclude the wife of a joint-tenant from her right to dower, prevent the husband of a joint-tenant from taking any interest in the lands of his deceased wife as tenant by curtesy,5 though during their coverture he has the right to use and occupy such lands as tenant by marital right. So a devise made by a joint-tenant, as there is no estate after his death to operate upon, has no effect. But it seems that the decisions go further, and declare such a devise void, though the testator before his decease, but subsequent to the devise, acquired a devisable interest, as where the lands, when devised, are held in jointtenancy, and are thereafter set off to the testator in severalty.

12 P. Wms. 529.

8 Co. Litt. 37 b; Litt. sec. 45.

Chitty Des. 323; Bell H. & W. 157.


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7 Duncan v. Forrer, 6 Binn. 197; Powell on Devises, 116; Litt. sec. 287.

The reasons given for holding the devise inoperative, even in such a case, were that it could only take effect as a severance, which it was not; that the estate to pass by devise must be of the same character as it was when devised; and that the changing of the estate from joint to several, so far from assisting the devisee, was a revocation of the devise.1

15. Who may be Joint-Tenants. In a preceding section, a quotation was made from Lord Coke's comments upon Littleton, in which his Lordship asserts that there may be a joint-tenancy without equal benefit of survivorship, or with such benefit exclusively in favor of one of the tenants. Notwithstanding this general principle, inequality in survivorship has been suggested as the reason for the rule that there can be no joint-tenancy between a corporation and a natural person; and the impossibility of survivorship has also been urged as a conclusive ground for denying the right of two corporate bodies to hold between them a joint estate. In the case of corporations, it is further asserted that they cannot hold jointly because they are seized by different rights and in different capacities. But upon whatever reasons founded, the rule is established, beyond doubt, that "bodies politic or corporate cannot be joint-tenants with each other; nor can the king, or a corporation, whether sole or aggregate, be joint-tenant with a natural person; but "all natural persons may be joint-tenants.'

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16. What may be held in Joint-Tenancy.-No species of property is incapable of being held by a joint title. Whatever may be subject to individual dominion by virtue of the law of sole ownership, is likewise susceptible of being made subject to such joint dominion as results from the law of joint ownership. Thus, considered in regard to the quantity of interest which the joint-tenants have, their estate may

1 Swift v. Roberts, Amb. 617; S. C. 3 Burr, 1488; 1 Blackst. 476.

2 See § 12.

3 Co. Litt. 190 a; 2 Greenl. Cruise, 372; Telfair v. Howe, 3 Rich. Eq. 242; 8. C. 55 Am. Dec. 637; De Witt v. San Francisco, 2 Cal. 297; Lyster v. Kirkpatrick, 26 Q. B. Up. Can. 217; Bennett v. Holbech, 3 Saund. 319.

42 Greenl. Cruise, 372. This language would indicate that husband and wife may be joint-tenants, unless they are, in a legal sense, not natural persons. The fiction of law, under which they were deemed to constitute but one person, was the cause of their formerly being held incompetent to take an estate otherwise than as tenants by entireties. It is now generally though not universally conceded that they may acquire property either as joint-tenants or as tenants in common. See post, sec. 72; Fladung v. Rose, 58 Md. 13.



be in fee-simple, fee-tail, for life,' for years, or at will. It may be for life, or for the life of another. The estate may be equitable as well as legal. It may be undivided as well as in severalty. Hence, if there be three persons holding as joint-tenants, and one convey his interest to a third person, the other two will remain joint-tenants between each other, though their title is for only two-thirds of the estate. So joint-tenants may hold every species of personal estate, including funds in which they have jointly invested, and also all kinds of chattels, debts, duties, contracts, and choses in action. In regard to mortgages, the rule seems to be, that whenever the mortgage is made to two or more to secure a joint debt, they will be treated as joint-tenants during the existence of the mortgage, and will be compelled to pursue their remedy of foreclosure by joint action. But if, on the other hand, the debts secured are the several debts of the mortgagees, this fact rebuts the presumption of joint ownership in the mortgage, and leaves each at liberty to pursue his several remedy for the collection of the amount due to him individually. In fact, the decisions holding joint-mortgagees to be joint-tenants, do not seem to carry the rule beyond allowing, or perhaps requiring, the survivor, in case of the death of either party, to prosecute the proceedings for foreclosure. The loan of the money for which a mortgage is given is not regarded as a transaction which would ordinarily raise the presumption that the parties thereby intended to create a joint ownership in the thing lent, with the benefit of survivorship. The surviving mortgagee is therefore, at least in equity, treated as trustee of the representatives of his deceased co-mortgagee. If the loan of the money does not

12 Bl. Comm. 180.

* 1 Platt on Leases, 537; Sym's Case, Cro. Eliz. 33; Brundel's Case, 5 Co. 9 a; Jeffereys v. Small, 1 Vern. 217.

Elliot v. Jekyl, 2 Ves. Sr. 681.

York v. Stone, 1 Salk. 158; Rex v. Williams, Bunb. 343; Jickling on the Analogy between Legal and Equitable Estates, 233.

5 Crossfield v. Such, 22 Eng. L. & E. 555; 8 Exch. 825; 22 Law J. Rep. Exch. 325. Trammell v. Harrell, 4 Ark. 602; Sessions v. Peay, 19 Ark. 269; Litt. secs. 281 and 282.

7 Appleton v. Boyd, 7 Mass. 131; Williams v. Hilton, 35 Me. 547.

Brown v. Bates, 55 Me. 522; Burnett v. Pratt, 22 Pick. 558.

Story Eq. Jur. sec. 1206; Randall v. Phillips, 3 Mason C. C. 387; Petty v. Styward, 1 Ch. Rep. 31, 57.

imply an intention on the part of the mortgagees to give each other the benefit of survivorship, then no such intention should be inferred from any means which they may jointly pursue to render their security productive. Hence, if they jointly prosecute their remedy by foreclosure, and become joint purchasers at the sale, still will the interest acquired by such sale be held by tenancy in common. And a like result follows when, independent of any foreclosure, they purchase the mortgagor's equity of redemption.2

? 17. A joint-tenancy may be created by any joint purchase, but not otherwise. "Purchase includes every mode of coming to an estate except inheritance." If two or more disseize another of "any lands or tenements to their own use, then the disseizors are joyntenants." "Now, as there be joyntenants by disseizin, so are there joyntenants by abatement, intrusion, and usurpation, all of which are included in the latter."5


18. Presumption in regard to Creation of. As jointtenancy was a favorite of the common law, no special words or limitations were necessary to call it into being. On the other hand, words or circumstances of negation were indispensable to avoid it. Whenever it was shown that property had vested in two or more persons, by the same joint purchase, there arose at once, both at law and in equity, the presumption that it vested as an estate in joint-tenancy. This presumption is liable to be overthrown in equity by proof of circumstances from which the Court may infer that the parties intended a several rather than a joint estate.

1 Pearce v. Savage, 45 Me. 102; Goodwin v. Richardson, 11 Mass. 469; 2 Powell's Mort. 672.

Edwards v. Fashion, Pre. Ch. 332; S. C. 1 Eq. Ca. Abr. 292.

Greer v. Blanchar, 40 Cal. 197.

'Litt. sec. 278; Putney v. Dresser, 2 Met. 586.

Co. Litt. 181 a.

* Co. Litt. 182 a; Jickling on the Analogy between Legal and Equitable Estates, 234; Gilbert v. Richards, 7 Vt. 208.

'Aveling v. Knipe, 19 Ves. 441; Dart on Vendors and Purchasers, 432; Robinson v. Preston, 4 Kay & J. 505.

19. Presumption where Property was acquired for Trade. Where lands are conveyed to partners, or others, for the purposes of trade or joint speculation, the presumption arises that the purchase is "only the substratum for an adventure, in the profits of which it was intended they should be concerned;" and therefore no survivorship will be allowed in equity. The same is true where, though originally jointtenants, the parties contract to deal with their property as if in trade.2

20. The presumption where one tenant advances more than his share of purchase money is frequently and distinctly spoken of in the text-books. Thus, Mr. Dart feels warranted in asserting that, "if two purchase and one advance more of the purchase money than the other, there will, in equity, be no survivorship, although there are no words indicating a tenancy in common. The assertion thus made is, however, qualified by Sir Edward Sugden, and restrained to cases where this inequality appears from the deed itself. It is worthy of remark that the rule as laid down by Mr. Dart, without the qualification, is founded upon a dictum, and this dictum is in turn based upon a prior one. Mr. Dart relies upon the language of Lord Chancellor Hardwicke, when his Lordship asserts that "it has been determined that if two purchase, and one advances more of the purchase money than the other, there shall be no survivorship." The case decided by Lord Hardwicke did not require any investigation or decision in regard to the rights of co-purchasers making unequal advances. In the case referred to by him as determining the question, the parties had been jointly interested in an undertaking, and, the better to advance their common in

Lyster v. Dolland, 1 Ves. Jr. 431; Dale v. Hamilton, 5 Hare, 369; Elliott v. Brown, 8 Swanst. 489; Houghton v. Houghton, 11 Sim. 491; Morris v. Barrett, 3 Y. & J. 384; Rathwell v. Rathwell, 26 Q. B. (Upper Canada) 184; Lake v. Gibson, 1 Eq. Ca. Ab. 294; Duncan v. Forrer, 6 Binn. 196.

2 Jeffereys v. Small, 1 Vern. 217.

"Dart on Vendors ard Purchasers, 432 of Am. ed.

Sugd. on Vendors, 901 of 7th Am. ed. This limitation is based on and supported by Lake v. Gibson, 1 Eq. Ca. Abr. 291; and seems to be approved by Caines v. Grant, 5 Binn. 122.

Rigden v. Vallier, 2 Ves. Sr. 258.

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