Jointenants.

1

Jointenants are, as if a man be seised of certain lands or tenements, &c. and infeoffeth two, three, four, or more, to have and to hold to them for term of their lives, or for term of another's life, by force of which feoffment or lease they are seised, these are jointenants.

And it is to be understood, that the nature of jointenancy is, that he which surviveth shall have only the entire tenancy, according to such estate as he hath, if the jointure be continued, &c. As if three jointenants be in fee simple, and the one hath issue and dieth, yet they which survive shall have the whole tenements, and the issue shall have nothing. And if the second jointenant hath issue and die, yet the third which surviveth shall have the whole tenements to him and to his heirs for ever. But otherwise it is of parceners; for if three parceners be, and before any partition made the one hath issue and dieth, that which to him belongeth shall descend to his issue. And if such parcener die without issue, that which belongs to her shall descend to her co-heirs, so as they shall have this by descent, and not by survivor, as jointenants shall have, &c.

And as the survivor holds place between jointenants in the same manner it holdeth place between them which have joint estate or possession with another of a chattel, real or personal. As if a lease of lands or tenements be made to many for term of years, he, which survives of the lessees, shall have the tenements to him only during the term by force of the same lease. And if a horse, or any other chattel personal be given to many, he which surviveth shall have the horse only.

In the same manner it is of debts and duties, &c. for if an obligation be made to many for one debt, he which surviveth shall have the whole debt or duty. And so is it of other covenants and contracts, &c.

Also, if there be two jointenants of land in fee simple within a borough where lands and tenements are divisible by testament, and if the one of the said two jointenants deviseth that which to him belongeth by his testament, &c. and dieth, this devise is void. And the cause is, for that no devise can take effect till after the death of the devisor, and by his death all the land presently cometh by the law to his companion, which surviveth, by the survivor; the which he doth not claim, nor hath any thing in the land by the devisor, but in his own right by the survivor according to the course of law, &c. and for this cause such devise

is void. But otherwise it is of parceners seised of tenements devisable in like case of devise, &c. causa qua supra.

Also, if a joint estate be made of land to a husband and wife and to a third person, in this case the husband and wife have in law in their right but the moiety.2

1 See 2 Bl. Com. 180 et seq.

2 Lord Coke does not use the phrase "by entireties." He speaks of cases in which" the husband and wife shall have no moieties." That is to say, he regards tenancy by entireties as being a species of joint tenancy, with the distinguishing characteristic that it confers no power of severance. Challis, Real Prop. (2d ed.) 344, note. See 2 Kent, Com. (14th ed.) *132, note x. ED.

Tenants in common. Tenants in common are they, which have lands or tenements in fee simple, fee tail, or for term of life, &c. and they have such lands or tenements by several titles, and not by a joint title, and none of them know of this his several, but they ought by the law to occupy these lands or tenements in common, and pro indiviso to take the profits in common. And because they come to such lands or tenements by several titles, and not by one joint title, and their occupation and possession shall be by law between them in common, they are called tenants in common. As if a man infeoff two jointenants in fee, and the one of them alien that which to him belongeth to another in fee, now the alienee and the other jointenant are tenants in common; because they are in such tenements by several titles, for the alienee cometh to the moiety by the feoffinent of one of the jointenants, and the other jointenant hath the other moiety by force of the first feoffment made to him and to his companion, &c. And so they are in by several titles, that is to say, by several feoffments, &c.

Also, if three jointenants be, and one of them alien that which to him belongeth to another man in fee, in this case the alienee is tenant in common with the other two jointenants: but yet the other two jointenants are seised of the two parts which remain jointly, and of these two parts the survivor between them two holdeth place, &c.

Also, if two parceners be, and the one alieneth that to her belongeth to another, then the other parcener and the alienee are tenants in

common.

Also, as there be tenants in common of lands and tenements, &c. as aforesaid, in the same manner there be of chattels reals and personals. As if a lease be made of certain lands to two men for term of 20 yeares, and when they be of this possessed, the one of the lessees grant that which to him belongeth to another during the terin, then he to whom the grant is made and the other shall hold and occupy in common.

In the same manner it is of chattels personals. As if two have jointly by gift or by buying a horse or an ox, &c. and the one grant that to him belongs of the same horse or ox to another, the grantee, and the other which did not grant, shall have and possess such chattels personals in common. And in such cases, where divers persons have chattels real or personal in common, and by divers titles, if the one of them dieth, the others which survive shall not have this as survivor, but the executors of him which dieth shall hold and occupy this with them which survive, as their testator did or ought to have done in his lifetime, &c. because that their titles and rights in this were several, &c.

NOTE. For statutory changes in the United States, see Stimson, Am. Stat. La'w, §§ 1371, 1375.

SECTION VI.

REVERSIONS AND REMAINDERS.1

WILLIAMS, REAL PROPERTY (18th ed.), 308, 318. If a tenant in fee simple should grant to another person a lease for a term of years, or for life, or even if he should grant an estate tail, it is evident that he will not thereby dispose of all his interest; for in each case his grantee has a less estate than himself. Accordingly, on the expiration of the term of years, or on the decease of the tenant for life, or on the decease of the donee in tail without having barred his estate tail and without issue, the remaining interest of the tenant in fee will revert to himself or his heirs, and he or his heir will again become tenant in fee simple in possession. The smaller estate which he has so granted is called, during its continuance, the particular estate, being only a part, or particula, of the estate in fee. And, during the continuance of such particular estate, the interest of the tenant in fee simple, which still remains undisposed of — that is, his present estate, in virtue of which he is to have again the possession at some future time—is called his reversion.

If at the same time with the grant of the particular estate, he should also dispose of this remaining interest or reversion, or any part thereof, to some other person, it then changes its name, and is termed, not a reversion but a remainder. Thus, if a grant be made by A, a tenant in fee simple, to B for life, and after his decease to C and his heirs, the whole fee simple of A will be disposed of, and C's interest will be termed a remainder, expectant on the decease of B. A remainder, therefore, always has its origin in express grant: a reversion merely arises incidentally, in consequence of the grant of the particular estate. It is created simply by the law, whilst a remainder springs from the act of the parties.

A remainder chiefly differs from a reversion in this, that between the owner of the particular estate and the owner of the remainder (called the remainderman) no tenure exists. They both derive their estates from the same source, the grant of the owner in fee simple; and one of them has no more right to be lord than the other. But as all the estates must be holden of some person, - in the case of a grant of a particular estate with a remainder in fee simple, the particular tenant and the remainderman both hold their estates of the same chief lord as their grantor held before. It consequently follows, that no rent service is incident to a remainder, as it usually is to a reversion; for rent service is an incident of tenure, and in this case no tenure exists.

1 See 2 P. & M. Hist. 21.

LEAKE, DIGEST OF LAND LAW, 318, 320, 322, 326, 328. Several remainders may be created successively in the same land, either leaving a reversion or with an ultimate remainder in fee. If a grant be made to A for life, and after the lapse of a day after his death to B for life or in fee, the limitation of B is not a remainder, because it does not commence in possession immediately on the termination of the particular estate; it is a limitation of a freehold estate to commence in futuro, which in a common law conveyance is void, and the reversion of A's estate remains in the grantor. Also a limitation which is to take effect in defeasance of a preceding estate, without waiting for the regular determination of that estate according to the terms of its limitation, is not a remainder; and such a limitation is void at common law.

The particular estate and the remainder must be created at the same time by one conveyance or instrument: for if the particular estate be first created, leaving the reversion in the grantor, any subsequent disposition can be effected only by grant or assignment of the reversion; which is not thereby changed into a remainder, but still retains its character of a reversion, to which the tenure of the particular estate is incident.

Tenant of a particular estate of freehold may, in general, convey the land for a less estate with remainder over.

But a remainder may be limited to a person not yet ascertained or to a certain person upon a condition precedent which may not happen until after the termination of the particular estate; and whilst such uncertainty lasts, as to the person or the interest, it is described as a contingent remainder. A contingent remainder becomes changed into a vested remainder by the owner becoming certain or the condition happening during the continuance of the particular estate.

The principle of the common law that the seisin of the freehold can never be in abeyance, but must always be vested in some determinate person imposes two rules upon the limitation and operation of contingent remainders: - The first of which rules is that a contingent remainder of freehold must always have a particular vested estate of freehold to support it.

The other rule resulting from the principle above stated is, That a contingent remainder must become vested during the continuance of the particular estate or at the instant of its determination. If not then vested, it fails altogether, and the next limitation takes immediate effect.

CHAPTER III.

SEISIN AND CONVEYANCE.

SECTION I.

SEISIN.

Co. LIT. 17 a. Seisitus cometh of the French word seisin, i. e., possessio, saving that in the common law, seised or seisin is properly applied to freehold, and possessed or possession properly to goods and chattels; although sometime the one is used instead of the other.1

LEAKE, DIGEST OF LAND LAW, 46-48. A feoffment might be made with an express appropriation of the seisin to a series of estates in the form of particular estate and remainders, and the livery to the immediate tenant was then effectual to transfer the seisin to or on behalf of all

1 "Seisin is a technical term denoting the completion of that investiture by which the tenant was admitted into the tenure, and without which no freehold could be constituted or pass. It is a word common as well to the French as to the English law. It is either in deed, which is, when the person has the actual seisin or possession; or in law, when after a discent the person, on whom the lands descend, has not actually entered, and the possession continues vacant, not being usurped by another. When lands of inheritance are carved into different estates, the tenant of the freehold in possession, and the persons in remainder or reversion, are equally in the seisin of the fee. But, in opposition to what may be termed the expectant nature of the seisin of those in remainder or reversion, the tenant in possession is said to have the actual seisin of the lands. The fee is intrusted to him. By any act which amounts to a disaffirmance by him of the title of those in the reversion, he forfeits his estate, and any act of a stranger which disturbs his estate is a disturbance of the whole fee. Hargrave's note, 217.

"Doubtless, there is an etymological connection between 'seizing' and being 'seised,' but the nature of that connection is not very certain. If on the one hand 'seisin' is connected with 'to seize,' on the other hand it is connected with 'to sit' and 'to set; 'the man who is seised is the man who is sitting on land; when he was put in seisin he was set there and made to sit there. Thus seisin seems to have the same root as the German Besitz and the Latin possessio. To our medieval lawyers the word seisina suggested the very opposite of violence; it suggested peace and quiet. It did so to Coke. And so it was said as possessio is derived a pos et sedeo, because he who is in possession may sit down in rest and quiet; so seisina also is derived a sedendo, for till he hath seisin all is labor et dolor et vexatio spiritus; but when he has obtained seisin, he may sedere et acquiescere.'" 2 P. & M. Hist. (2d ed.) 30. See ib. bk. 2, c. 4, § 2.