208. A joint tenancy is an ownership of land in community in equal undivided shares by virtue of a conveyance -which imports an intention that the tenants shall hold one and the same estate. The interests of all the tenants go to the last survivor. For the existence of a joint tenancy the folio-wing unities are necessary:
(a) Unity of interest.
(b) Unity of title.
(c) Unity of time.
(d) Unity of possession.
At common law all joint estates were presumed to be joint tenancies unless there was a contrary provision in the instrument creating them,1 but this presumption does not now obtain in many states.2 Joint estates held by trustees or mortgagees continue, however, in many of these states, to be joint tenancies.3 The chief incident of a joint tenancy is the right of survivorship by which the interest of a tenant does not pass to his heirs, but vests, after his death, in his co-tenant, or, if there be more than one, it vests in all of them. The doctrine of survivorship is applied until only one tenant remains, who then holds in severalty, and the land will go to his heirs.4 A joint tenancy is said to be held "per my et per tout." This is translated by Blackstone as meaning by the half or moiety and by the whole,5 while others translate it as meaning by nothing and by the whole.6 For the existence of a joint tenancy it is necessary that there be present the four unities as they are called.7
1 Martin v. Smith, 5 Bin. (Pa.) 16. Cf. Caines v. Grant, Id. 119.
2 See post, p. 335. On the difference between tenancies in common and joint tenancies, see Doe v. Abey, 1 Maule & S. 428.
3 1 Stim. Am. St. Law, § 1371, 3, 5.
4 Overton v. Lacy, 6 T. B. Mon. (Ky.) 13; Spencer v. Austin, 38 Vt. 258: Herbemont's Ex'rs v. Thomas, 1 Cheves, Eq. (S. O.) 21. 5 2 Bl Comm. 1S2.
6 Murray v. Hall, 7 Man., G. & S. 440, note, 445. 7 De Witt v. San Francisco, 2 Cal. 289.
These are interest,8 title,9 time,10 and possession.11 By unity of interest, in reference to joint tenancy, is meant a similarity of estate, as regards its extent or duration, in each joint tenant. Since joint tenants hold under a grant of a single estate, their interests are necessarily the same in extent. Thus one cannot be tenant in fee simple and the others in tail, or for life, or for a term of years. But where two or more are joint tenants for life, one of them may have the inheritance in severalty, subject to the joint estate; as where land is granted to A. and B. for their lives, and to the heirs or heirs of the body of A. By unity of the title of joint tenants is meant the creation of their interests by one and the same act; that is, by the same grant or devise. Joint tenants cannot be acquired under different titles. And, at common law, unity of time of commencement of the title was requisite; that is, the interests of the tenants must have vested at one and the same time. Thus, if the fee simple in remainder after a life estate were limited to the heirs of A. and the heirs of B., A. and B. being alive at the time of the limitation, but subsequently dying at different times, their respective heirs would not be joint tenants, but tenants in common; since their interests would not have arisen at the same moment. But by means of limitations operating by way of springing or shifting use, or executory devise, the interests of joint tenants may be made to arise at different times. Unity of possession means only a joint right to possession, which is essential to all joint estates. A joint tenancy can be created only by purchase. It cannot arise by descent.12 One joint tenant cannot convey the whole estate or any part by metes and bounds,13 but he may convey his share, and such a conveyance causes a severance of the tenancy.14 That is, when a joint tenant mortgages or conveys his share to a stranger, it turns the joint tenancy into a tenancy in common so far as that share is concerned, though the other owners continue to hold as joint tenants between themselves with all the incidents of joint tenancy.15 In many states joint tenancies have been turned into tenancies in common by statute, or the right of survivorship has been abolished, or a power to devise has been given.16
8 Wiscot's Case, 2 Coke, 60b; Putney v. Dresser, 2 Mete. (Mass.) 583; Jones v. Jones, 1 Call (Va.) 458.
9 De Witt v. San Francisco, 2 Cal. 289.
10 Strattan v. Best, 2 Brown, Ch. 233; Sammes' Case, 13 Coke, 54.
11 Thornton v. Thornton, 3 Rand. (Va.) 179.
12 1 Washb. Real Prop. (5th Ed.) 676. Cf. Putney v. Dresser, 2 Mete. (Mass.) 583. But see Rev. St. Ind. 1894, §§ 2624, 2625.
13 Porter v. Hill, 9 Mass. 34; Hanks v. Enloe, 33 Tex. 621.
14 Robison v. Codman, 1 Sumn. 121, Fed. Cas. No. 11,970; Davidson v. Heydom, 2 Yeates (Pa.) 459.
209. A tenancy in common is a joint ownership of lands, to which the principle of survivorship does not apply. The only unity necessary for a tenancy in common is that of possession.
A tenancy in common is where two or more hold the same land with interests accruing under different titles, or accruing under the same title, but at different periods, or conferred by words of limitation importing that the grantees are to take in distinct shares.17 Unity of possession is necessary for a tenancy in common. A joint tenancy differs from a tenancy in common in being subject to the right of survivorship, and in requiring the four unities, while for a tenancy in common only unity of possession is necessary. Though the other unities may exist, their presence is immaterial. The interests may be held by several and distinct titles.18 These titles may be acquired in different ways.19 In many of the United States all joint estates are presumed to be tenancies in common, unless the contrary appears.20 Tenancies in common may be created by conveyances expressly providing for such estates,21 or they may arise by implication; as where one-half of a parcel of land is con-vejed without metes and bounds, or where a certain number of acres out of a larger tract are conveyed without the particular part being designated.22 In all cases of tenancies in common the share of each tenant, whatever the number of tenants may be, is presumed to be equal to the shares of the others,23 unless it is otherwise expressly provided, or circumstances, such as unequal contributions to the purchase price, rebut such a presumption.24
15 Simpson's Lessee v. Amnions, 1 Bin. (Pa.) 175; Brown v. Raindle, 3 Ves. 256.
16 1 Stim. Am. St. Law, §§ 1371, 2630; 3 Share. & B. Lead. Cas. Real Prop. 15. For exceptions to the operation of these statutes, see 2 Jones, Real Prop. §§ 1783. 1788, 1789.
17 1 Steph. Comm. 323.
18 Mittel v. Karl, 133 111. 65, 24 N. E. 553; Spencer v. Austin, 38 Vt. 258; Griswold v. Johnson, Conn. 303. They may arise by descent, but not at common law. Fenton v. Miller, 94 Mich. 204, 53 N. W. 957.
19 2 Bl. Comm. 192. And see Putnam v. Ritchie, 6 Paige (N. Y.) 390.
20 l stim. Am. St. Law, § 1371 B; 3 Shars. & B. Lead. Cas. Real Prop. 20. See Case v. Owen, 139 Ind. 22, 3S N. E. 395.