Exception to unity of time.
A release is the proper form of assurance between joint tenants.
(k) Co. Litt. 188 a; 2 Black. Com. 181.
(l) 13 Rep. 56; Pollexf, 373; Bac. Abr. tit. Joint Tenants (D); Gilb. Uses and Trusts, 71 (135,n. 10,3rd cd.).
(m) 2 Jarman on Wills, 161, 1-t cd.; 209, 2nd cd.; 235, 3rd cd.; Oates d. Hattcrley v. jach-ton, 2 Strange, 1172; Fearne, Cont. Rem.313; Bridgev, Yates, 12 Sim. 645; Kenworthy v. Ward, 11 Hare, 196; M'Gregor v. M'Gregor, 1 De Gex, F. & J. 73. (n) Co. Litt. 169 a; Bac. Abr. tit. Joint Tenants (I) 3,2; 2 Brest.
The incidents of a joint tenancy, above referred to, last only so long as the joint tenancy exists. It is in the power of any one of the joint tenants to sever the tenancy; for each joint tenant possesses an absolute power to dispose, in his lifetime, of his own share of the lands, by which means he destroys the joint tenancy (p). Thus, if there be three joint tenants of lands in fee simple, any one of them may, by any of the usual modes of alienation, dispose during his lifetime, though not by will, of an equal undivided third part of the whole inheritance. But should he die without having made such disposition, each one of the remaining two will have a similar right in his lifetime to dispose of an undivided moiety of the whole. From the moment of severance, the unity of interest and title is destroyed, and nothing is left but the unity of possession; the share which has been disposed of is at once discharged from the rights and incidents of joint tenancy, and becomes the subject of a tenancy in common. Thus, if there be three joint tenants, and any one of them should exercise his power of disposition in favour of a stranger, such stranger will then hold one undivided third part of the lands, as tenant in common with the remaining two.
Tenants in common are such as have a unity of possession, but a distinct and several title to their shares (q). The shares in which tenants in common hold are by no means necessarily equal. Thus, one tenant in common may be entitled to one-third, or one-fifth, or any other proportion of the profits of the land, and the other tenant or tenants in common to the residue. So, one tenant in common may have but a life or other limited interest in his share, another may be seised in fee of his, and the owners of another undivided share may be joint tenants as between themselves, whilst as to the others they are tenants in common. Between a joint tenancy and tenancy in common, the only similarity that exists is therefore the unity of possession. A tenant in common is, as to his own undivided share, precisely in the position of the owner of an entire and separate estate.
A joint tenancy may be severed.
Tenants in common.
Abst. 61. But a grant would operate as a release; Chester v. Willan, 2 "Wins. Saund. 96 a.
(o) Litt. s. 288. (p) Co. Litt. 186 a.
When the rights of parties are distinct, that is, for instance, when they are not all trustees for one and the same purpose, both a joint tenancy and a tenancy in common are inconvenient methods for the enjoyment of property. Of the two a tenancy in common is no doubt preferable; inasmuch as a certain possession of a given share is preferable to a similar chance of getting or losing the whole, according as the tenant may or may not survive his companions. But the enjoyment of lands in severalty (r) is far more beneficial than either of the above modes. Accordingly it is in the power of any joint tenant or tenant in common to compel his companions to effect a partition between themselves, according to the value of their shares. This partition was formerly enforced by a writ of partition, granted by virtue of statutes passed in the reign of Henry VIII.(s). Before this reign, as joint tenants and tenants in cornmon always become such by their own act and agreement, they were without any remedy, unless they all agreed to the partition; whereas we have seen(t) that co-parceners, who become entitled by act of law, could always compel partition. In modern times, the Court of Chancery has been found to be the most convenient instrument for compelling the partition of estates(u); and by a modern statute (x), the old writ of partition, which had already become obsolete, was abolished. Whether the partition be effected through the agency of the Court of Chancery, or by the mere private agreement of the parties, mutual conveyances of their respective undivided shares must be made, in order to carry the partition into complete effect (y). With respect to joint tenants, these conveyances ought, as we have seen, to be in the form of releases; but tenants in common, having separate titles, must make mutual conveyances, as between strangers; and by a modern statute it is provided, that a partition shall be void at law, unless made by deed (z). If any of the parties entitled should be infants under age, lunatic, or of unsound mind, and consequently unable to execute a conveyance, the Court of Chancery has now power to carry out its own decree for a partition by making an order, which will vest their shares in such persons as the court shall direct (a). Another very convenient mode of effecting a partition is, by application to the inclosure commissioners for England and Wales, who are empowered by recent acts of parliament to make orders under their hands and seal for the partition and exchange of lands and other hereditaments, which orders are effectual without any further conveyance or release (b).
(q) Litt. s. 202; 2 Black. Com. L91. (r) Ante, p. 100.
(s) 31 Hen. VIII. c. 1; 82 Ben. VIII. c. 32.
Partition by inclosure commissioners.
(t) Ante, p. 90.
(u) See Manners v. Charles-worth, 1 Mylne & Keen, 330. (x) Stat." 3 & 4 Will. IV. c. 27, 36. (y) Attorney-General v. Hamilton, 1 Madd. 214.
(z) Stat. 8 & 9 Vict. c. 106, s. 3, repealing stat. 7 & 8 Vict. c. 76, s. 3, to the same effect.
(a) Stat. 13 & 14 Vict, c 60, ss. 3, 7, 30.
An act has now passed to amend the law relating to partition (c). By this act the Court of Chancery is empowered to direct a sale of the property instead of a partition, whenever a sale and distribution of the proceeds appear to the Court to be more beneficial to the parties interested (d). And if the parties interested to the extent of a moiety or upwards request a sale, the Court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly (e). And if any party interested, requests a sale the Court may, if it thinks fit, unless the other parties interested or some of them undertake to purchase the share of the party requesting a sale, direct a sale of the property (f). This alteration of the law, which was some time since suggested by the author (g) has, in his humble judgment, effected a substantial improvement.
Act to amend the law of partition.
(b) Stats. 8 & 9 Vict. c. 118, ss. 147, 150; 9 & 10 Vict. c. 70, ss. 9, 10, 11; 10 & 11 Vict. c. Ill, ss. 4 6; 11 & 12 Vict. c. 99, s. 13; 12 & 13 Vict. c. 83, ss. 7, 11; 15 & 16 Vict. c. 79, ss. 31, 32; 17 & 18 Vict. c. 97, s. 5; 20 & 21 Vict. c. 31, ss. 1 - 11; 21 & 22 Vict. c. 53.
(c) stat. 31 & 32 Vict. c. 40.
(d) Sect. 3.
(e) Sect. 4. (f) Sect. 5.
(g) Essay on Real Assets, p.