still further; and where, from any cause, some of the persons named cannot or will not take the thing granted or devised, gives the whole to those who have the desire and capacity to receive it. Thus, in Kentucky, when a patent had issued to two for certain lands, as it appeared that one of them died before the patent issued, the Court held that "the intention of the grantor and the object of the grant will be better attained by admitting the title of the whole to pass to the living grantee." A devise having been made to the son and daughter of W. W., and being uncertain, because W. W. had four sons, the whole was given to the daughter. A bequest was made to A. W. and J. W. Subsequently, the testator, by a codicil, annulled and revoked every legacy of A. W. The effect of this revocation coming up before Lord Hardwicke for decision, he said: "Two points arise. 1st, Whether the codicil is a revocation of the whole gift; 2d, If not of the whole, whether of a moiety. 1st. It was necessary for the plaintiff to insist on its being a revocation of the whole, otherwise it could not be so of a moiety. In support of it, it is said, as it is a gift of the whole to both, with survivorship, each has a benefit by the gift to the other, from the chance he has in the other's share, from whence a revocation of the interest of one revokes such benefit accruing to the other, which is in the whole, and the substance of the gift. But this point is determined in Davis v. Kemp, Carth. 2, for the intent was that the defendant should take a moiety, and he must have it; and though he fails in the circumstances, yet he shall take it by devise." His Lordship then disposes of the second point as follows: "It is objected the estate is given to them jointly; that survivorship is essential to joint-tenancy, and by that only one can take the whole; that here is no survivorship. If an estate is limited to two jointly, the one capable of taking and the other not, he who is capable shall take the whole. Where a joint-tenancy to two is created in a devise, and the

Davy v. Kemp, Orl. Bridgm. 387; Alexander v. Alexander, 2 Ves. Sr. 645; Hawkins r. Kemp, 3 East, 410; Nicholson v. Woodsworth, 2 Swanst. 365; Townson v. Tickell, 3 Barn. & Ald. 31; Begnie v. Crook, 2 Bing. N. C. 70; S. C. 2 Scott, 128; Jones v. Maffet, 5 Serg. & R. 523.

*Overton v. Lacy, 6 Monr. 16. The rule also applies to conveyances: see Wythe's Reports, 373, Appendix.

3 Dowset v. Sweet, Ambl. 175.

estate vests by the death of one, the survivor takes by the gift, from the nature of the estate, and after the release or death of one, it is pleadable by the other as a devise to him alone, which could not be the case unless he took the whole by bequest; and suppose the testator revokes the interest of the one, the law and consequence must be the same."1

229. Severance. A joint-tenancy may be severed in three ways: 1st, by an act of one of the tenants operating on his own share, and creating a severance as to that share; 2d, by mutual agreement; and 3d, by such a course of dealing as intimates "that the interests of all were mutually treated as constituting a tenancy in common." To this may be added, as a fourth means of severance, proceedings against the jointtenant producing an involuntary alienation of his title.

3

4

230. Severance by Act of a Tenant.-A demise by one of the joint-tenants severs the joint-tenancy and turns it into a tenancy in common, although the lease is not to commence until after the lessor's death. A mortgage executed by any of the joint-tenants also operates as a severance." "A contract for sale by a joint-tenant seems to be, in equity, a severance of the joint-tenancy." A surrender by joint-tenant of a copyhold estate, to enable the lord to regrant, is a sever

231. Severance by Mutual Agreement.—A joint-tenancy may be severed by any contract entered into by the cotenants for that purpose." A mere declaration that a joint-tenancy shall be severed will not effect a severance, but an express agreement to that effect will.9

Humphrey v. Tayleur, Amb. 136; 1 Dick, 161.

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

3 Doe v. Read, 12 East, 57; Roe v. Lonsdale, 12 East, 39.

293.

Clerk v. Clerk, 2 Vern. 323; Gould v. Kemp, 2 Mylne & K. 310.

Simpson v. Ammons, 1 Binn. 177; York v. Stone, 1 Salk. 158; S. C. 1 Eq. Cas. Ab.

Dart on Vendors and Purchasers, 4 Eng. ed. 253; Brown v. Raidle, 3 Ves. 256. For severance by marriage settlements, see Caldwell v. Fellowes, L. R. 9 Eq. 410. 7 Edwards v. Champion, 21 E. L. & E. 230; S. C. 1 De G. & S. 75.

8 Frewen v. Relfe, 2 Brown's C. C. 224.

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

STE

ress

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."2 "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 circumstance 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."

33. Severance by Process against a Tenant.-The 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.'

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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." And where there are eight joint

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

Telfair v. Howe, 3 Rich. Eq. 239; Lyster v. Dolland, 1 Ves. Jr. 434.

3 Leak v. McDowall, 32 Beav. 30.

'Davidson v. Heydon, 2 Yeates, 463; Hair v. Avery, 28 Ala. 267.
Moody v. Moody, Ambl. 649; Ford v. Grey, 6 Mod. 45.

Preston on Abstracts of Title, 60.

tenants, and five effect a severance, the other three remain joint-tenants with one another, and the five become jointtenants of the portions severed and appropriated by them.'

JOINT-TENANCY IN THE UNITED STATES.

2

6

3

4

8

5

9

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, 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, Florida, North Carolina, Pennsylvania (Purdon's Dig. 815,) South Carolina, 10 Texas," Virginia, 12 West Virginia,13 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

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

2 Code, Geo. sec. 2300; Lowe t. Brooks, 23 Geo. 325.

Sergeant v. Steinberger, 2 Ohio, 305; Miles v. Fisher, 10 Ohio, 1; Wilson v. Fleming, 13 Ohio, 68.

7 "All survivorships of real and personal estate are forever abolished." - (Ark. Dig. by Gould, 628.)

8Thompson's Digest, 191; Bush's Dig. 286.

9 Weir v. Tate, 4 Ired. Eq. 264.

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

11 Oldham v. White's Dig. 245; Paschal's Dig. Art. 3429.

12 3 Rob. Pr. 162-3.

13 Code West Va. 462, secs. 18 and 19.

141 Washb. on R. P. 424; Genl. St. of Ky., ed. 1873, 586.

15 Whittlesey v. Fuller, 11 Conn. 340, approving Phelps v. Jepson, 1 Root, 48, de

cided in 1769.

showing such intent.' The absence of such enactments in England caused expressions of regret to escape from ViceChancellor W. Page Wood, in pronouncing judgment in the case of Williams v. Hensman. He said: "In these questions

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 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 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.)

In ILLINOIS, Sec. 5 of Chapter on Conveyances (see Comp. Laws, ed. of 1868, 101) 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 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-tenaney 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 section 7 shall not apply to mortgages, nor to conveyances in trust, nor to conveyances to husband and wife. 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 psss by devise, or go to his personal representatives, subject to debts, curtesy, dower, or distribution." (Genl. St. ed. of 1873, p. 586, sec. 13.) But this section does not apply to the estates of executors or trustees, nor to other States, when it appears that it was intended that the part of one dying should belong to the others. (Ib. sec. 14.)

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.) 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.)