1

tenancy, to a husband and wife, and to a stranger, the latter takes a moiety, and the husband and wife, as one person, the other moiety. (b) But if the husband and wife had been seised of the lands as joint tenants before their marriage, they would continue joint tenants afterwards, as to that land, and the consequences of joint tenancy, such as severance, partition, and the jus accrescendi, would apply. (c) It is said, however, to be now understood, that husband and wife may, by express words, be made tenants in common by a gift to them during coverture. (d)

Joint tenancy may be destroyed by destroying any of its constituent unities except that of time. If A. and B. be joint tenants, and A conveys his joint interest, being his moiety of the estate, to C., the joint tenancy is severed, and turned into a tenancy in common, as between B. and C., for they hold under different conveyances. So, if A., B., and C. were joint tenants, and A. conveyed his joint interest to D., the latter would be a tenant in common of one third, and B. and C. continue joint tenants 364 of the other *two thirds. (a) The same consequence would follow, if one of three joint tenants was to release his share to one of his companions; there would be a tenancy in common as to that share, and the jointure would continue as to the other two parts. (b) The proper conveyance between joint tenants is a release; and each has the power of alienation over his aliquot share, and of charging it with his individual debts. (c) Joint tenants may also sever the tenancy voluntarily by deed, or they

tout; and they are called tenants by entireties to distinguish them from the joint tenants seised per my and per tout. This ingenious writer has pushed the subject into unprofitable refinements.

(b) Litt. sec. 291. Co. Litt. 187, b. Lord Kenyon, 5 Term Rep. 654. Shaw v. Hearsey, 5 Mass. 521. Jackson v. Stevens, 16 Johns. 110. Thornton v. Thornton, 8 Rand. 179. Den v. Hardenbergh, 5 Halst. 42. See vol. ii. lec. 28, sec. 1.

(c) Co. Litt. 187, b. Moody v. Moody, Amb. 649.

(d) Preston on Abstracts, vol. ii. 41. Ibid. on Estates, vol. i. 132.

(a) Litt. secs. 292, 294.

(b) Litt. sec. 304. A sole demise of one joint tenant in ejectment, severs the joint tenancy, and entitles the lessor to a recovery for his proportion. Bowyer v. Judge, 11 East, 288.

(c) Remmington v Cady, 10 Conn. 44.

Same rule as to bequest. Gordon v. Whieldon, 12 Jurist, 1848, p. 984.

may compel a partition by writ of partition, or by bill in equity.1 It is to be presumed that the English statutes of 31 and 32 Hen. VIII., have been generally re-enacted or adopted in this country, and probably with increased facilities for partition. They were re-enacted in New Jersey, in 1797, and in Virginia in their revised code, (d) and in New York, the 6th February, 1788; and the New York Revised Statutes (e) have made further and more specific and detailed provisions for the partition of lands, held either in joint tenancy or in common, and when one or more of the parties shall have estates of inheritance, or for life or lives, or for years; and they have given equal jurisdiction over the subject to the courts of law and of equity. The proceeding is commenced at law by partition, and in chancery by petition or bill. (f) In Massachusetts and Maine, the writ of partition at the common law is not only given, but partition may be effected by petition without writ. (g)

(d) Vol. i. c. 98.

(e) Vol. ii. 315–332.

(f) In Connecticut, joint tenants, tenants in common or coparceners, may be compelled to partition by writ; Stat. 1838, p. 392; and in New Jersey by writ as at common law, and by bill in chancery, and by commissioners duly appointed. Revised Statutes of New Jersey, 1847. Under the New York statute, the proceeding in partition cannot be instituted but by a party who has an estate entitling him to immediate possession. Brownell v. Brownell, 19 Wendell, 367. The wife must be made a party to bind her interest. Co. Litt. 71, a. Allinant on Part. 64. Either party is entitled as a matter of right to a partition, however inconvenient it may be. If a fair partition be impracticable by metes and bounds, the court may assign the use of the property to each tenant for alternate periods, or they may appoint a receiver, and have the profits divided in just proportion, or they may direct a sale of the premises in their discretion, as being the most easy and practicable disposition of the right of the tenants. Smith v. Smith, 1 Hoff. Ch. 506.

(g) Mussey v. Sanborn, 15 Mass. 155. Cook v. Allen, 2 Ibid. 462. Act of Maine, 1821. The petition in Massachusetts may be addressed to the Court of Common Pleas, or the Supreme Judicial Court. The Probate Court may also award partition as between heirs and devisees. The course of proceeding on petition is minutely detailed. That mode cannot be maintained by one who has only a remainder or reversion, nor can a tenant for any term under thirty years, maintain the petition against a tenant of the freehold. After the return of the commissioners who make a partition is confirmed, the judgment is that the partition be effectual forever, and mortgages

1 Husband and wife cannot be adverse parties to such a proceeding. Howe v. Blanden, 21 Vermont, 815. Where joint owners of a mill sold the same, receiving a slave as the consideration, it was held, that they became tenants in common of the slave, the community of interest being dissolved by the sale. Cheek v. Wheatley, 3 Sneed (Tenn.), 484.

The jurisdiction of chancery in awarding partition is well estab lished in England, by a long series of decisions; and it has been found, by experience, to be a jurisdiction of great public convenience. (h) But a court of equity does not interfere unless the

title be clear, and never where the title is denied or suspi*365 cious, until the party seeking a partition has had an opportunity to try his title at law. (a) The same principle has been acted upon in the courts of equity in this country. (b)

and other liens as against part owners fasten on their assigned shares. Mass. Revised Statutes, 1836, part 3, tit. 3, c. 103. In Connecticut, New Jersey, Ohio, Illinois, and Georgia, and probably in most of the other states, partitions of lands in joint tenancy, tenancy in common or coparcenary, may be effected by petition to the courts of law. And in Connecticut, the Court of Probate has jurisdiction to order partition in the case of minors, and to order a sale of the real estates of minors for reasonable cause. Statutes of Connecticut, 1838, pp. 331, 392. Statutes of Ohio, 1831, p. 254. Revised Laws of Illinois, 1833. Prince's Digest of the Statutes of Georgia, edit. 1837, p. 541. In Indiana, courts of law and equity have concurrent jurisdiction in partition. Statute, 1831. This is probably the case in all the states where courts of equity are established. A very easy mode of partition, by petition to the Circuit Court, is provided in Missouri. Revised Statutes, 1835. New Jersey, in 1797, embodied the substance of the English statutes of 31 and 32 Hen. VIII. It was the ancient doctrine under the stat utes of Hen. VIII. that no persons could be made parties to a writ of partition, or be affected by it, but such as were entitled to the present possession of their shares in severalty; they must be joint tenants and tenants in common in their own or their wives' right, or tenants for life and years. This is still the law in New Jersey. Stevens v. Enders, 1 Green, 271. But the statute provisions in some parts of this country make the operation of the partition more extensive. By the New York statute (New York Revised Statutes, vol. ii. 318, 319, 322, secs. 5, 6, 15, 35), tenants by the courtesy, tenants in dower, if the dower has not been admeasured, and persons entitled to the reversion or remainder, after the termination of any particular estate, and every person, who, by any contingency contained in any devise, grant, or otherwise, may be entitled to any beneficial interest therein, whether in possession or otherwise, may be made parties to the partition. In Maine, the owner of an equity of redemption in possession, and one interested in the estate, and having a right of entry, though out of possession, may have a writ of partition. Call v. Barker, 3 Fairfield, 320. So, in the bill reported by the Revisers of the Pennsylvania Code, in January, 1835, every remainder-man or reversioner may be made a co-defendant with the tenant of the particular estate. The statute provisions on the subject in this country are distinguished for the extent and minuteness of their regulation.

(h) Harg. note 23 to Co. Litt. lib. 3. Calmady v. Calmady, 2 Vesey, 570. Agar v. Fairfax, 17 Vesey, 533. Baring v. Nash, 1 Ves. & Bea. 551. In England, by statute of 3 and 4 Wm. IV. c. 27, the writ of partition is abolished, and the only mode of enforcing a partition is by bill in equity.

(a) Bishop of Ely v. Kenrick, Bunb. 322. Cartwright v. Pultney, 2 Atk. 380. Blynman v. Brown, 2 Vern. 232.

(b) Wilkin v. Wilkin, 1 Johns. Ch. 111. Phelps v. Green, 3 Ibid. 302. 4 Rand. 493. Martin v. Smith, Harper Eq. (S. C.) 106. In proceedings by petition for a par

The New York Revised Statutes (c) have prescribed to the courts of law and the Court of Chancery, in respect to partition, that whenever there shall be a denial of co-tenancy, an issue shall be formed, and submitted to a jury to try the fact; and the respective rights of the parties are to be ascertained and settled, before partition be made or a sale directed.2

A final judgment or decree, upon a partition at law, under the New York Revised Statutes, binds all parties named in the proceedings, and having at the time any interest in the premises divided, as owners in fee, or as tenants for years; or as entitled to the reversion, remainder or inheritance, after the termination of any particular estate; or as having a contingent interest therein, or an interest in any undivided share of the premises, as tenants for years, for life, by the courtesy, or in dower. (d) But the judgment does not affect persons having claims as tenants in dower, by the courtesy, or life, in the whole of the premises subject to the partition. (e) It is likewise provided, in respect to the

tition of lands held in common, the application must show a seisin and actual possession. A disseisin, or an adverse possession, destroys the common possession, and bars a suit for a partition, so long as the ouster continues. Clapp v. Bromagham, 9 Cowen, 530.1 (c) Vol. ii. 320, sec. 18. Ibid. 329, sec. 79.

(d) A judgment in partition establishes the title and concludes the parties. Clapp v. Bromagham, 9 Cowen, 569. Mills v. Witherington, 2 Dev. & Batt. 434. There may be a partition of a mere equitable estate. Hitchcock v. Skinner, 1 Hoff. Ch. 21.

(e) New York Revised Statutes, vol. ii. 322, secs. 35, 36. Ibid. 330, sec. 84. In cases of actual partition, and if the husband be alive, the wife need not be a party to the suit in partition, and her inchoate right of dower will attach upon that part of the premises which shall be set off to him in severalty. Her right of dower cannot in any case be barred by a decree in a partition suit to which she was not a party; but if she be a party, the dower may be assigned to her in severalty, and if a sale of the premises be decreed, it would seem to be the opinion of Chancellor Walworth, that her contingent right of dower would be barred by the sale, and the purchaser will obtain a perfect title discharged of the claim of the dower. Wilkinson v. Parish, 3 Paige, 653. I presume, however, that in such a case some provision would be made out of the proceeds of the sale for the eventual consummation of her dower. If her contingent right of dower be thus barred by a sale without her consent, it must arise from the operation of the proceedings in partition as authorized by the New York Revised Statutes, vol. ii. 218, secs. 5, 6. Ibid. 323, secs. 38, 39. Ibid. 325, 326, secs. 50-54. In Jackson v. Edwards, 7 Paige, 386, S. C. 22 Wendell, 498, it was held, that in proceedings in partition, the wife's inchoate right of dower, whether she be an

1 A mere right of entry will not sustain partition where there is an effectual disseisin. Brock

e. Eastman, 2 Wms. (28 Vt.) 658. Adams v. Ames Iron Co., 24 Conn. 230.

? There is a similar law in Tennessee. Groves v. Groves, 3 Sneed (Tenn.), 187.

exercise of equity jurisdiction, in the case of partition, that if it should appear that equal partition cannot be made without prejudice to the rights and interests of some of the parties, the court may decree compensation to be made by one party to the other, for *366 equality of partition, * according to the equity of the case. (a) This is the rule in equity, independent of any statute provi sion, when equality of partition cannot otherwise be made. (b) II. An estate in coparcenary always arises from descent. At common law, it took place when a man died seised of an estate of inheritance, and left no male issue, but two or more daughters, or other female representatives in a remoter degree. In this case, they all inherited equally as co-heirs in the same degree, or in unequal proportions, as co-heirs in different degrees. (c) They have distinct estates, with a right to the possession in common, and each has a power of alienation over her particular share. Coparceners, in like manner as joint tenants, may release to each other, and if one of them conveys to a third person, the alienee and the other coparceners will be tenants in common, though the remaining coparceners, as between themselves, will continue to hold in coparcenary. (d)

Coparceners resemble joint tenants in having the same unities of

infant or adult, in the undivided share of her husband, would (she being a party to the proceeding) be divested by a sale under a judgment or decree, so as to protect the purchaser under the sale. All future estates, vested or contingent, may be sold under à judgment or decree in partition, and the court will ascertain and protect the value of the dower or other future and contingent estates thus affected by the judgment or decree, and order it to be deducted from the proceeds of the sales. And if some of the tenants have made improvements on the common lands, they are entitled to their full shares of the land as it would be estimated without them. In Jackson v. Edwards, above cited, it was left a doubtful question in the Court of Errors, whether the inchoate right of dower in lands sold under a decree in partition, would be barred in law by the sale. If practicable, the shares allotted to them should include their improvements, and if not, and the improvements in whole or in part are allotted to others, allowance ought to be made for them. Borah v. Archers, 7 Dana (Ken.), 177. Hitchcock v. Skinner, 1 Hoff. Ch. 21.

(a) New York Revised Statutes, vol. ii. 330, sec. 83.

(b) Clarendon v. Hornby, 1 P. Wms. 446. In Pennsylvania, on partition of an intestate's estate under a decree of the Orphan's Court, the eldest son and his alienee are entitled to the first choice of the estate at a valuation, when it cannot be advantageously divided among the heirs. A right of choice is given to the sons successively, and their lineal descendants, by statute of 1832. Ragan's Estate. 7 Watts, 488. (c) Litt. secs. 241, 242.

(d) Preston on Estates, vol. i. 138.