A gift of lands to two or more persons in joint tenancy-is such a gift as imparts to them, with respect to all other persons than themselves, the properties of one single owner. As between themselves, they must, of course, have separate rights; but such rights are equal in every respect, it not being possible for one of them to have a greater interest than another in the subject of the tenancy. A joint tenancy is accordingly said to be distinguished by unity of possession, unity of interest, unity of title, and unity of the time of the commencement of such title (a). Any estate may be held in joint tenancy; thus, if lands be given simply to A. and B. without further words, they will become at once joint tenants for life (b). Being regarded, with respect to other persons, as but one individual, their estates will necessarily continue so long as the longer liver of them exists. While they both live, as they must have several rights between themselves, A. will be entitled to one moiety of the rents and profits of the land, and B. to the other; but after the decease of either of them, the survivor will be entitled to the whole during the residue of his life. So, if lands be given to A. and B., and the heirs of their two bodies; here, if A. and B. be persons who may possibly intermarry, they will have an estate in special tail, descendible only to the heirs of their two bodies (c): so long as they both live, they will be entitled to the rents and profits in equal shares; after the decease of either, the survivor will be entitled for life to the whole; and, on the decease of such survivor, the heir of their bodies, in case they should have intermarried, will succeed by descent, in the same manner as if both A. and B. had been but one ancestor. If, however, A. and B. be persons who cannot at any time ■ lawfully intermarry, as, if they be brother and sister, or both males, or both females, a gift to them and the heirs of their two bodies will receive a somewhat different construction. So long as it is possible for a unity of interest to continue, the law will carry it into effect: A. and B. will accordingly be regarded as one person, and will be entitled jointly during their lives. while they both live their rights will be equal; and, on the death of either, the survivor will take the whole, so long as he may live. But, as they cannot intermarry, it is not possible that any one person should be heir of both their bodies: on the decease of the survivor, the law, therefore, in order to conform as nearly as possible to the manifest intent, that the heir of the body of each of them should inherit, is obliged to sever the tenancy, and divide the inheritance between the heir of the body of A., and the heir of the body of B. Each heir will accordingly be entitled to a moiety of the rents and profits, as tenant in tail of such moiety. The heirs will now hold in a manner denominated tenancy in common; instead of both having the whole, each will have an undivided half, and no further right of survivorship will remain (d).
The four unities of joint tenancy.
Joint tenants for life.
Joint tenants in tail.
(a) 2 Black. Com. 180.
(b) Litt. s. 283; Com. Dig. tit. Estates (K 1), see ante, p. 17.
An estate in fee simple may also be given to two or more persons as joinl tenants. The unity of this kind of tenure is remarkably shown by the words which are made use of to create a joint tenancy in fee simple. The lands intruded to be given to joint tenants in fee simple are limited to them and their heirs, or to them, their heirs and assigns (e), although the heirs of one of them only will succeed to the inheritance, provided the joint tenancy be allowed to continue: thus, if lands be given to A., B. and C. and their heirs, A., B. and C. will together be regarded as one person; and, when they are all dead, but not before, the lands will descend to the heirs of the artificial person (so to speak) named in the gift. The survivor of the three, who together compose the tenant, will, after the decease of his companions, become entitled to the whole lands (f). While they all lived each had the whole; when any die, the survivors or survivor can have no more. The heir of the survivor is, therefore, the person who alone will be entitled to inherit, to the entire exclusion of the heirs of those who may have previously died (g). A joint tenancy in fee simple is far more usual than a joint tenancy for life or in tail. Its principal use in practice is for the purpose of vesting estates in trustees (h), who are invariably made joint tenants. On the decease of one of them, the whole estate then vests at once in the survivors or survivor of them, without devolving on the heir at law of the deceased trustee, and without being affected by any disposition which he may have made by his will; for joint tenants are incapable of devising then respective shares by will (i); they are not regarded as having any separate interests, except as between or amongst themselves, whilst two or more of them are living. Trustees, therefore, whose only interest is that of the persons for whom they hold in trust, are properly made joint tenants; and so long as any one of them is living, so long will every other person be excluded from the legal possession of the lands to which the trust extends. But on the decease of the surviving trustee, the lands will devolve on the devisee under his will, or on his heir at law, who will remain trustee till the lands are conveyed to some other trustee duly appointed.
Joint tenants in fee.
(c) Co. Liu. 20 b, 25 b.; Bac Abr. tit. Joint Tenants (G). R. P.
(d) Litt. s. 283. See Re Tiver-ton Market Act, 20 Beav. 374.
Trustees are always made joint tenants.
(e) Bac. Abr. tit. Joint Tenants (A); Co. Litt. 184 a. (f) Litt. s. 280. (g) Litt. ubi sup.
(h) See post, the chapter on Uses and Trusts, (i) Litt. s. 287; Perk. s. 500.
As joint tenants together compose but one owner, it follows, as we have already observed, that the estate of each must arise at the same time (k); so that if A. and B. are to be joint tenants of lands, A. cannot take his share first, and then B. come in after him. To this rule, however, an exception has been made in favour of conveyances taking effect by virtue of the Statute of Uses, to be hereafter explained; for it has been held that joint tenants under this statute may take their shares at different times (l); and the exception appears also to extend to estates created by will(m). A further consequence of the unity of joint tenants is seen in the fact, that if one of them should wish to dispose of his interest in favour of any of his companions, he may not make use of any mode of disposition operating merely as a conveyance of lands from one stranger to another. The legal possession or seisin of the whole of the lands belongs to each one of the joint tenants of an estate of freehold; no delivery can, therefore, be made to him of that which he already has. The proper form of assurance between joint tenants is, accordingly, a release by deed(n), and this release operates rather as an extinguishment of right than as a conveyance; for the whole estate is already supposed to be vested in each joint tenant, as well as his own proportion. And in the Norman French, with which our law abounds, two persons holding land in joint tenancy are said to be seised per mie et per tout(o).