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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.
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.
5 Co. Litt. 181 a.
"Co. Litt. 182 a; Jickling on the Analogy between Legal and Equitable Estates, 234; Gilbert v. Richards, 7 Vt. 208.
7 Aveling v. Knipe, 19 Ves. 441; Dart on Vendors and Purchasers, 432; Robinson v. Preston, 4 Kay & J. 505.
8 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.
"Jeffereys v. Small, 1 Vern. 217.
3 Dart on Vendors and 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.
5 Rigden v. Vallier, 2 Ves. Sr. 258.
terest, had purchased certain lands, to which purchase some of them had not contributed their proportion of funds. Here was a case, then, where the presumption of joint-tenancy was rebutted by the conceded fact that the subject-matter of the controversy had been acquired in the prosecution of a joint adventure, undertaken for the purpose of speculation or of common profit. Hence the Master of the Rolls "decreed that survivorship should not take place; for that payment of money created a trust for the parties advancing the same; and an undertaking upon the hazard of profit or loss was in the nature of merchandising, where the jus accrescendi is never allowed." A decision made at a more recent date than any of those referred to, seems to have necessarily involved this question. Two persons had certain stocks, part of which were acquired by equal and part by unequal advances. According to the very meagre and unsatisfactory report of the case, the Court determined that the stock paid for equally was held in joint-tenancy, and that there was no reason to infer that the other stock was held in any different manner.2
21. Parol Evidence to Rebut Presumption of JointTenancy. Notwithstanding the Statute of Frauds, parol evidence is admissible to rebut the presumption of jointtenancy, by showing that the parties, though originally holding jointly, had contracted to deal with their property as if in trade. But whenever it is sought to show that the parties have turned their joint estate into a tenancy in common, it has been held that the parol evidence admissible for that purpose must be confined to the acts of the parties, showing the manner in which the property was treated and the purposes in which it was embarked, and can in no case include evidence of mere declarations of intention.*
? 22. Parol Evidence to establish Cotenancy.-Where, upon joint purchase of an estate, the conveyance is made to
Lake v. Craddock, 3 P. Wms. 159.
* Jeffereys v. Small, 1 Vern. 217; Robinson v. Preston, 4 Kay and J. 505. 4 Harrison v. Barton, 1 Johnson & Hemming, 293.
but one of the purchasers, the trust in favor of the copurchaser may be proved by any evidence in writing made at or after the purchase.' But if the parties have advanced their money in pursuance of an agreement to make a joint purchase, a resulting trust arises which may be established by parol, and enforced against him in whose sole name the deed has been taken.2
23. Creation of Joint-Tenancy by Bequest or Devise.-At an early day, it was sometimes questioned whether a legacy could be held in joint-tenancy. The rule, however, was soon established that bequests, as well as devises and conveyances, should be deemed to pass estates in joint-tenancy unless a contrary intent appeared. This contrary intent must be apparent from the will itself. No doubt the Courts always lean towards tenancy in common when the parties claim under a will, and are ever ready to give full effect to any language of the testator showing a design to create several interests. "It may be stated generally, that all expressions importing division by equal or unequal shares, or referring to the devisees as owners of respective or distinct interests and even words simply denoting equality, will have this effect." In wills, the Courts construe survivorship into some other word, if possible. Whenever a bequest or devise is to two or more 'equally," or "to be equally divided," or "in equal shares,"
2 Sugd. on Vendors, 678 (7th Am. ed. 388.)
* Dart on Vendors and Purchasers (4th Eng. ed.) 850; Sugden on Vendors (7th Am. ed.) 388; Scott v. McKinney, 98 Mass. 344.
3 Campbell v. Campbell, 4 Bro. 15; Armstrong v. Armstrong L. R. 7 Eq. 518; Martin v. Smith, 5 Binn. 16; Crooke v. De Vandes, 9 Ves. 204; Morgan v. Britten L. R. 13 Eq. 28.
42 Powell on Dev. ch. 18, p. 370; quoted and approved in Gilpin v.. Hollingsworth, 3 Md. 195. See also Ettricke v. Ettricke, Amb. 656; Gordon v. Atkinson, 1 De G. & S. 478; Griswold v. Johnson, 5 Conn. 365; Dunn v. Bryan, 38 Geo. 154; Allison v. Kurtz, 2 Watts, 185; Wescott v. Cady, 5 Johns. Ch. 334; Vreeland v. Van Ryper, 17 N. J. Eq. 134; Ryves v. Ryves, L. R. 11 Eq. 541; Att'y Gen'l v. Fletcher, L. R. 13 Eq. 128. 5 4 Dane's Ab. 760.
Heron v. Walsh, 3 Grant's Ch. (Upper Canada) 606; Heathe v, Heathe, 2 Atk. 121; Torret v. Frampton, Style, 434; Bagley v. Cook, 3 Drew, 662.
Stewart v. Garnett, 3 Sim. 398; Briscoe v. McGee, 2 J. J. M. 370; Jensur v. Jenour, 10 Ves. 569; Esdale v. Wilshere, 9 Law J. Rep. Ch. 71; Hodges v. Grant, 36 Law J. Rep. (N. S.) Chanc. 395; Law R. Ex. 140.
Emerson r. Cutler, 14 Pick. 114; Hart v. Marks. 4 Bradf. 161.
or "equally among, or "to and amongst them," or to them 'respectively, or according to quantity and quality, each to take his part when he comes of age, the devisees or legatees, as the case may be, will acquire the property as tenants in common. "It hardly seems," says Mr. Jickling, “desirable to accumulate authorities on this head: it may be sufficient to observe, that any words of severance, whether 'share and share alike,' 'between,' 'among,' 'equally to be divided,' 'videlicet," "by and between," severally," and similar expressions, would probably at law, and certainly in equity, have that effect."10 So a devise to two persons to the longest liver of them, to be equally divided between them, creates a tenancy in common;" and a like result follows a devise “equally to my brother A's eldest son, and his heirs, and to my brother B's eldest son and his heirs jointly to be enjoyed by them, their heirs and assigns forever." 12 A tenancy in common also arises from a devise to A and B, to be held and divided by them as they shall deem most equal.13 A devise was made to the children of J. B. equally, share and share alike, for and during the term of their joint natural lives, or the life of the survivor, or longer liver of them. It was held that the children took as tenants in common, without benefit of survivorship.14 A testator bequeathed to his grandchildren a legacy of one thousand pounds, payable to each of them on their attaining twenty-one years of age. The words, payable to each of them, were considered as equivalent to "to be divided between them," and the grandchildren were therefore
1 Denn v.
Gaskin, Cowp, 657; Morley v. Bird, 3 Ves. 630.
* Campbell v. Campbell, 4 Bro. 15.
* Lewen v. Cox, Cro. Eliz. 695; Moore's Settlement, 10 W. R. 315; 31 Law J. Rep. (N. S.) Ch. 364; Gordon v. Atkinson, 1 De G. & S. 478.
Harrison v. Botts, 4 Bibb, 420.
Jacques v. Collins, Cro. Car. 75.
* Perkins v. Baynton, 1 Bro. C. C. 118; Lashbrook v. Cock,-2 Mer. 70.
7 Kew v. Rowse, 1 Vern. 353.
* Prince v. Heylyn, 1 Atk. 493.
"See 2 Atk. 441.
10 Jickling on Legal and Equitable Estates, 237. See also Blewitt v. Roberts, 10 L.
J. Rep. (N. S.) 342; 1 Cr. & P. 274; Paine v. Wagner, 12 Sim. 184.
"Blissett v. Cranwell, 2 Lev. 373; Salk. 226.
1 Evans v. Brittain, 3 S. & R. 135.
15 Ingalls v. Arnold, 14 Q. B. (Upper Canada) 296.
14 Bryan r. Twigg, 37 Law J. Rep. (N. S.) 249; S. C. Law Rep. 3 Chanc. 183.