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? 31. Severance by Mutual Agreement.-A joint-tenancy may be severed by any contract entered into by the cotenants for that purpose.1 A mere declaration that a jointtenancy shall be severed will not effect a severance, but an express agreement to that effect will. A like result was held to follow from an agreement by two joint-tenants to make their wills in such manner that the survivor should take the property for life, and that after her death it should be held for certain nieces, and the making of the wills pursuant to such agreement.3

32. Severance by a Course of Dealing.-Severance may always be inferred from the fact that the subject-matter of the joint ownership has been embarked in commercial or speculative enterprises. It may also be inferred from any other course of dealing between the tenants manifesting an intent to change the joint holding. Thus, where eight persons were interested in certain funds, and five of them directed the trustee to invest the funds in a mortgage, this investment destroyed the joint-tenancy between the five and the three others, but the five remained joint-tenants between themselves. If money is laid out jointly upon an estate held in joint-tenancy with a view to its improvement, this, in this Court, is a severance."5 "A separate dealing by joint-tenants of the property may sever the joint-tenancy and create a tenancy in common. But I do not think this inference is to be drawn merely from the circumstances that a trustee, having realized part of the estate, has paid the money received, in certain proportions, to the parties in severalty. As to the money not received, they still remain joint-tenants." "Until some act is done to sever, the interest remains as it previously was, an interest in joint-tenancy. The burthen of proof lies on those who contend that a joint-tenancy has been severed."

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33. Severance by Process against a Tenant.-The Frewen v. Relfe, 2 Brown's C. C. 224.

2 Gould v. Kemp, 2 Mylne & K. 310; Patricke v. Powlett, 2 Atk. 154.

In re Wilford's Estate, 11 L. R. Ch. Div. 267; 48 L. J. Ch. D. 243; 27 W. R. 455.

4 Williams v. Hensman, 1 John. & Hem. 557.

5 Telfair v. Howe, 3 Rich. Eq. 239; S. C. 55 Am. Dec. 638; Lyster . Dolland, 1 Ves. Jr. 434.

Leak v. McDowall, 32 Beav. 30.

issuing of execution on a judgment operates as a legal severance, if, without any further proceedings, a venditioni exponas may be taken out and the lands sold. "A fine or recovery by one joint-tenant only, severs the joint-tenancy.

34. On a severance by one only where there are three tenants, or by two where there are four or more tenants, the remaining shares will be held in joint-tenancy. So where one joint-tenant aliens a moiety of his moiety, the severance will affect only the share so alienated, and an equal share of the other joint-tenants.3 And where there are eight joint-tenants, and five effect a severance, the other three remain joint-tenants with one another, and the five become joint-tenants of the portions severed and appropriated by them."

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35. Statutes Abolishing or Limiting. The importance of the law of joint-tenancy has been very greatly diminished in the United States. This has been accomplished in three ways: 1st, By the entire abolition of this species of tenancy, as in Georgia,5 Ohio, Oregon, and Tennessee. 2d, By the enactment of laws providing, in effect, that at the decease of any joint-tenant his moiety should be distributed to his heirs, or devisees, in the same manner as if he were a tenant in common. This last course has been pursued by the Legislatures of Alabama, Arkansas, 10 Colorado," Illinois, 12 Florida, 13 North Carolina,1 Pennsylvania,"

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1 Davidson v. Heydon, 2 Yeates, 463; Hair v. Avery, 28 Ala. 267.

2 Moody v. Moody, Ambl. 649; Ford v. Grey, 6 Mod. 45.

Preston on Abstracts of Title, 60.

4 Williams v. Hensman, 1 Johns. & H. 557.

5 Code, Geo. sec. 2300; Lowe v. Brooks, 23 Geo. 325.

Sergeant v. Steinberger, Ohio, 305; S. C. 15 Am. Dec. 553; Miles v. Fisher, 10 Ohio, 1; S. C. 36 Am. Dec. 61; Wilson v. Fleming, 13 Ohio, 68; Tabler v. Wiseman, 2 Ohio St. 210.

Deady's Comp. 719, sec. 38; ed. 1873, p. 589, sec. 38.

8 Code of Tenn. sec. 2010.

"Code of Ala. sec. 2191, ed. 1876.

10 All survivorships of real and personal estate are forever abolished." (Ark. Dig. by Gould, 628; Rev. St. ed. 1874, sec. 3590.)

11 Genl. St. ed. 1883, sec. 1832.

12 Starr & Curtiss, An. St. of Ill. p. 1376, sec. 1.

13 Thompson's Digest, 191; Bush's Dig. 286.

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14 Weir v. Tate, 4 Ired. Eq. 264; Code N. C. ed. 1883, sec. 1326. Every estate vested in executors, administrators, or collectors, as such, shall be held by them in joint-tenancy. (Ib. sec. 1502.)

1 Brightly's Purdon's Dig. ed. 1883, p. 939, sec. 1.

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South Carolina, Texas, Virginia, West Virginia,' and Kentucky, while in Connecticut the judiciary, at a very early day, and apparently without any legislative authority, entirely ignored what they quite appropriately styled "the odious and unjust doctrine of survivorship." The third and principal way by which the number of joint-tenancies has been greatly diminished is by the enactment of statutes changing the rules of the common law so far as to require a grantor or devisor, wishing to create a joint-tenancy, to insert words in his deed or devise clearly showing such intent." The absense of such enactments in England caused expressions of regret to escape from Vice-Chancellor W. Page Wood, in pronouncing judgment in the case of Williams v. Hensman. He said: "In these questions of joint-tenancy

1 Comp. Laws, ed. of 1873, 440.

2 Oldham & White's Dig. 245; Paschal's Dig. Art. 3429.

33 Rob. Pr. 162-63.

* Code West Va. 549, secs. 18 and 19, ed. 1884.

51 Washb. on R. P. 424; Genl. St. of Ky. ed. 1883, 586; Sander's Heirs v. Morrison's Exr's, 7 Mon. 54; 18 Am. Dec. 161.

Whittlesey v. Fuller, 11 Conn. 340, approving Phelps v. Jepson, 1 Root, 48, decided in 1769; S. C. 1 Am. Dec. 33.

The following note exhibits the provisions of most of the statutes in the United States by which the common-law presumption in favor of joint-tenancy has been displaced in favor of tenancy in common.

In ARKANSAS, "every interest in real estate, granted or devised to two or more persons, other than executors and trustees, as such, shall be in tenancy in common, unless expressly declared in such grant or devise to be a joint-tenancy." (Ark. Dig.. 1874, sec. 837.)

In CALIFORNIA, "a joint interest is one owned by several persons in equal shares, by'a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint-tenancy, or when granted or devised to executors or trustees as joint-tenants." (Sec. 683 Civil Code.) Sec. 686 same Code further declares that "every interest created in favor of several persons in their own right is an interest in common," unless acquired by a partnership, or declared at its creation to be a joint interest, or acquired as community property.

In DAKOTA, "a joint interest is one owned by several persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint-tenancy, or when granted to executors or trustees as jointtenants." (Sec. 176, Civil Code of Dakota.)

In DELAWARE, "no estate in joint-tenancy in lands, tenements, or hereditaments, shall be held or claimed by or under any grant, devise, or conveyance made to any persons other than to executors or trustees, unless the premises therein mentioned shall be expressly granted, devised, or conveyed to such persons to be held as jointtenants and not as tenants in common." (Sec. 1720, Rev. St. Del. ed. of 1852; sec. 1, p. 527, Comp. Laws, 1874.)

In ILLINOIS, Sec. 5 of Chapter on Conveyances (see Comp. Laws, ed. of 1868, 101; sec. 5, p. 571, Starr & Curtiss, Comp. Laws) enacts that "no estate in joint-tenancy in any lands, tenements, or hereditaments, shall be held or claimed under any grant, devise, or conveyance whatsoever, heretofore or hereafter made, other than to

the Court has frequently been driven to rely on minute grounds for holding a severance to have taken place, executors or trustees, unless the premises therein mentioned shall expressly be thereby declared to pass, not in tenancy in common, but in joint-tenancy; and every such estate, other than to executors or trustees (unless otherwise expressly declared as aforesaid), shall be deemed to be a tenancy in common."

Sec. 7 of Act concerning Conveyances in INDIANA, provides that "all conveyances and devises of lands, or of any interest therein, made to two or more persons, except as provided in the next following section, shall be construed to create estates in common and not in joint-tenancy; unless it shall be expressed therein that the grantees or devisees shall hold the same in joint-tenancy and to the survivor of them, or it shall manifestly appear, from the tenor of the instrument, that it was intended to create an estate in joint-tenancy." Sec. 8 provides that sec. 7 shall not apply to mortgages, nor to conveyances in trust, nor to conveyances to husband and wife. In this State "the survivor of persons holding personal property in jointtenancy, shall have the same rights only as the survivor of tenants in common, unless otherwise expressed in the instrument." (St. Ind. Rev. 1876, p. 491, sec. 4.) By sec. 1939, Code of Iowa, "conveyances to two or more in their own right create a tenancy in common, unless a contrary intent is expressed."

In KENTUCKY "when a joint-tenant dies, his part of the joint estate, real or personal, shall descend to his heirs, or pass by devise, or go to his personal representa tives, subject to debts, curtesy, dower, or distribution." (Genl. St. ed. of 1873, p. 586, sec. 13; Genl. St. Ky. ed. 1883, p. 586.) But this section does not apply to the estates of executors or trustees, nor to other estates, when it appears that it was intended that the part of one dying should belong to the others. (Ib. sec. 14.) In this State a grant or devise to husband and wife is also deemed to vest an estate in them as tenants in common, unless a right of survivorship is therein expressly provided for. (Genl. St. Ky. ed. 1883, p. 531, sec. 13.)

In MAINE, "conveyances not in mortgage, and devises of land to two or more persons, create estates in common, unless otherwise expressed. Estates vested in survivors upon the principle of joint-tenancy are to be so held." (Rev. St. Maine, ed. of 1871, 559, and ed. 1883, p. 604, sec. 7.)

In MARYLAND, the Act of 1822, ch. 162, declares that "no deed, devise, or other instrument of writing which may hereafter be executed, shall be construed to create an estate in joint-tenancy, unless in such deed, devise, or other instrument of writing, it is expressly provided that the property conveyed by such deed, devise, etc., is to be held in joint-tenancy." (See Craft v. Wilcox, 4 Gill, 506; Purdy v. Purdy, 3 Md. Ch. Dec. 547; Maryland Code, sec. 350, p. 12, where the words "which may hereafter be executed" are omitted.)

In MASSACHUSETTS, secs. 13 and 14 of the Chapter on Conveyances are similar to secs. 7 and 8 of the Indiana Act, already quoted. (Rev. of 1860, 466, 467; Pub. St. Mass. ed. 1872, p. 744, secs. 5, 6.)

In MICHIGAN, "all grants and devises of lands, made to two or more persons, except as provided in the following section, shall be construed to create estates in common, and not in joint-tenancy, unless expressly declared to be in joint-tenancy." (Sec. 44, 1329, Comp. Laws of Mich. 1871.) Sec. 45 provides that the preceding section shall not apply to mortgages, nor to devises or grants made in trust, or made to executors, or to husband and wife. (Howell's An. St. Mich. secs. 5560, 5561.)

MINNESOTA.-Sec. 44 of the Act of this State in regard to Estates in Real Property, is a copy of sec. 44 of same act of Michigan, quoted above. The exception from the operation of the section does not name conveyances to husband and wife. (Genl. St. of Minn. ed. of 1873, 617, and ed. 1878, p. 564.)

MISSISSIPPI. The statute of this State corresponds to that of Minnesota. (Code Miss, ed. 1871, sec. 2301.)

MISSOURI." Every interest in real estate granted or devised to two or more per

by the unfortunate circumstance that the Legislature has not thought fit to interpose by introducing the rule, that

sons, other than to executors and trustees, or to husband and wife, shall be a tenancy in common, unless expressly declared in such grant or devise to be in joint-tenancy." (Comp. Law, ed. 1865, 443; Rev. St. 1879, sec. 3949.)

IN NEVADA, "every interest in real estate granted or devised to two or more persons other than executors or trustees, as such, shall be a tenancy in common, unless expressly declared in the grant or devise to be a joint-tenancy." (2 269, Comp. Laws of Nev.) NEW HAMPSHIRE.-"Every conveyance or devise of real estate to two or more persons shall be construed to create an estate in common and not in joint-tenancy, unless it shall be expressed therein that such an estate is to be holden by the grantees or devisees as joint-tenants, or to them and the survivor of them, or other words are used clearly expressing an intention to create a joint-tenancy." (Genl. St. ed. 1867, 253, being sec. 14 of act concerning conveyances. Genl. St. ed. 1878, p. 325, sec. 15, declares that "joint heirs shall be tenants in common.")

NEW MEXICO.-"All interest in any real estate, either granted or bequeathed to two or more persons other than executors or trustees, shall be held in common, unless it be clearly expressed in such grant or bequest that it shall be held by both parties." (Sec. 2764, Comp. Laws N. M. ed. 1884.)

NEW JERSEY.-The act of Feb. 4, 1812, declares: "No estate, after the passing of this act, shall in this State be considered and adjudged to be an estate in jointtenancy except it be expressly set forth in the grant or devise creating such estate, that it is the intention of the parties to create an estate in joint-tenancy and not an estate in common, any law, usage, or decision heretofore made to the contrary notwithstanding." (Nixon's Digest, 4th ed. 150; Rev. St. 1877, p. 167.) To remove all doubts, trust estates have been expressly excepted from the operation of this statute. (Rev. St. 1877, p. 1224.)

NEW YORK." Every estate granted or devised to two or more persons, in their own right, shall be a tenancy in common, unless expressly declared to be in jointtenancy; but every estate vested in executors or trustees, as such, shall be held by them in joint-tenancy. This section shall apply as well to estates already created or vested, as to estates hereafter to be granted or devised. (Rev. St. N. Y. vol. 3, p. 14, ed. 1859; vol. 2, Rev. St. ed. 1876, p. 1104, sec. 44.)

OREGON.-Every conveyance or devise of lands, or interest therein made to two or more persons, other than to executors and trustees, as such, shall be construed to create a tenancy in common in such estate, unless it be expressly declared in such conveyance or devise, that the grantees or devisees shall take the lands as jointtenants." (Deady Comp. ed. 1872, p. 516, sec. 9.) Probably this section has been rendered inoperative by a subsequent statute containing the general declaration that “joint-tenancy is abolished, and all persons having an undivided interest in real property are to be deemed and considered tenants in common." (Ib. p. 589, sec. 38.) In RHODE ISLAND, all grants, devises, etc., made to two or more persons, whether husband and wife or not, shall be construed as creating a tenancy in common, unless a contrary intent appears. (Comp. Laws, ed. 1872, 348, and ed. 1882, p. 441, sec. 1.) TENNESSEE." In all estates, real and personal, held in joint-tenancy, the part or share of any tenant dying shall not descend or go to the surviving tenant or tenants, but shall descend or be vested in the heirs, executors, or administrators respectively of the tenant so dying, in the same manner as estates held by tenancy in common." (Genl. St. ed. 1873, sec. 2010.)

The law in VERMONT is similar to that of Rhode Island, but it excepts devises and conveyances in trust, or to husband and wife. (Genl. St. Vt. ed. 1880, sec. 1917.) WISCONSIN.-All grants and devises of lands made to two or more, create estates in common, unless it is otherwise expressed, except mortgages, and devises or grants made in trust, or to executors, or to husband and wife. (Rev. St. Wis. ed. 1878, secs. 2068, 2069.)

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