[method of partition is, where the eldest divides, and then she shall choose last; for the rule of law is, cujus est divisio, alterius est electio. The fourth method is where the sisters agree to cast lots for their shares. And these are the methods by consent. That by compulsion] was, where one or more sued out a writ of partition against the others, whereupon the sheriff went to the lands, and made partition thereof by the verdict of a jury, and assigned to each of the parceners her part in severalty. This writ, however, being now abolished, partition can at present be compelled only by bill in equity. [But there are some things which are in their nature impartible. The mansion-house, for example, and certain hereditaments of an incorporeal kind [shall not be divided; but the eldest sister, if she pleases, shall have them, and make the others a reasonable satisfaction in other parts of the inheritance; or if that cannot be, then they shall have the profits of the thing by turns, in the same manner as they take the advowson (k).]

Besides the method of partition, the estate in coparcenary, like that in joint-tenancy, may be dissolved, 2ndly, by the alienation of one of the parties, which destroys the unity of title; or, 3dly, by the whole at last descending to and vesting in one single person, which brings it to an estate in severalty (7).

IV. 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 (m).

In this tenancy there is not necessarily any unity of title; for one may hold by descent and the other by purchase, or the one by purchase from A. and the other by

(k) Co. Litt. 164 b, 165 a.

(1) 2 Bl. Com. 191; Doe v. Dixon, 5 Ad. & El. 839.

(m) As to tenants in common, see Co. Litt. 188 b-201 a.

purchase from B.; nor any unity in the time of vesting, for the one's estate may have vested fifty years ago, and the other's but yesterday; nor any necessary similarity or equality of interest, for one tenant in common may hold in fee simple, and the other in tail or for life; one may be entitled to two-thirds, and the other to one-third. Nor is there any entirety of interest, for each is seised or possessed of a distinct though undivided share; from which also it follows that there is no survivorship (n). The union consists only in this, that they hold the same land promiscuously.

[Tenancy in common may be created, either by the destruction of the two other estates, in joint-tenancy and coparcenary, or by special limitation in a deed. By the destruction of the two other estates, is here meant such destruction as does not bring them into estates in severalty, but puts an end only to the jointure or coparcenary: [as, if one of two joint-tenants in fee alienes his estate for the life of the alienee, the alienee and the other joint-tenant are tenants in common; for they now have several titles, the other joint-tenant by the original grant, the alienee by the new alienation (o); and they also have dissimilar interests, the former joint-tenant, in fee-simple, the alienee for his own life only. So, if one joint-tenant gives his part to A. in tail, and the other gives his to B. in tail, the donees are tenants in common, as holding by different titles, and conveyances(p). If one of two parceners alienes, the alienee and the remaining parcener are tenants in common (q); because they hold by different titles, the parcener by descent, the alienee by purchase. So likewise, if there be a grant to two men, or two women, and the heirs of their bodies, here the grantees

(n) It seems, however, that land may be given to two persons in such manner as to make them tenants in common with benefit of survivorship.

Doe v. Abey, 1 Mau. & Sel. 428.
(0) Litt. s. 292.
(p) Ibid. 295.
(q) Ibid. 309,

[shall be joint-tenants of the life-estate, but they shall have several inheritances (r); because they cannot possibly have one heir of their two bodies, as might have been the case had the limitation been to a man and woman, and the heirs of their bodies begotten (s): and in this, and the like cases, their issues shall be tenants in common; because they must claim by different titles, one as heir of A., and the other as heir of B.; and those too not titles by purchase, but descent. In short, whenever an estate in joint-tenancy or coparcenary is dissolved, so that there be no partition made, but the] undivided tenancy [continues, it is turned into a tenancy in common.

A tenancy in common may also be created by express limitation in a conveyance: but here care must be taken to insert words implying that the grantees are to take distinct, though undivided, shares; for a grant without such words would give a joint estate. And it is laid down in our books that [the common law is apt in its constructions to favour joint-tenancy rather than tenancy in common(t); because the divisible services issuing from land (as rent, &c.) are not divided, nor the entire services (as fealty) multiplied, by joint-tenancy, as they must necessarily be upon a tenancy in common.] Accordingly, though Cland given to two, to be holden the one moiety to one, and the other moiety to the other, is an estate in common (u); and if one grants to another half his land, the grantor and grantee are also tenants in common (x); (because, as has been before (y) observed, joint-tenants do not take by distinct halves or moieties; and by such grants the division and severalty of the estate is so plainly expressed, that it is impossible they should take a joint interest in the whole of the tenements;)] yet on the other hand, [an estate given to A. and B., equally to be divided

(r) Doe v. Green, 1 H. & H. 314;

vide sup. p. 314.

(s) Litt. s. 283.

(t) Fisher v. Wigg, Salk. 392.

(u) Litt, s. 298.
(x) Ibid. 299.

(y) See p. 314, 315.

[between them, in common law conveyances hath been said to be a joint-tenancy (z), for it implies no more than the law has annexed to that estate, viz. divisibility (a).] Such a limitation however in wills, and in conveyances founded on the Statute of Uses, (of which we shall have occasion to treat hereafter,) is certainly a tenancy in common (b); for though the tendency of the antient law was to favour a joint-tenancy, the leaning in later times has been the other way (c); the right of survivorship being often inconvenient and harsh in its effect; and therefore in wills and the other conveyances referred to, which came into use in comparatively modern times, and where a more liberal construction is in some respects allowed, than in the case of a common law conveyance, a tenancy in common will be created by words which might operate in the latter case as a limitation in joint-tenancy.

We may take this opportunity of remarking that when lands are given to two or more, as tenants in common, it frequently happens that a particular estate is limited to each of the grantees in his share, with remainder over to the other or others of them-as if a man give lands to his two children as tenants in common in tail, and direct that upon failure of the issue of one of them his share shall go over to the other in tail, and vice versa. Such ulterior estates as these are called cross remainders, because each of the grantees has reciprocally a remainder in the share of the other; and it is a rule respecting them, that in a deed they can be given only by express limitation, and shall never be implied (d); though it is otherwise with respect to wills, which are expounded more liberally, with a view to the presumable intent of the donor; for in these,

(*) 1 Equ. Cas. Abr. 291.

(a) Fisher v. Wigg, 1 P. Wms. 17. (b) Ratcliffe's case, 3 Rep. 39 b; 1 Ventr. 32; 1 Sand. Us. 126; Goodtitle v. Stokes, 1 Wils. 341; vide Co. Litt. by Harg. 190 b. n. (4).

(c) Joliffe v. East, 3 Bro. C. C. 25; Fisher v. Wigg, 1 P. Wms. 14.

(d) Cole v. Levingston, 1 Vent. 224; Doe v. Worsley, 1 East, 416; 1 Saund. by Wms. 185, n. (6).

cross remainders may be raised not only by actual limitation, but by any expression from which the design to create them can reasonably be inferred (e).

A tenancy in common may be dissolved-1. By partition; for tenants in common, like joint tenants, were compellable by the statutes before mentioned (ƒ) to divide their lands by writ of partition, though they were not liable at common law to such a proceeding; and they may be still driven to a partition by means of a suit in equity. [2. By uniting all the titles and interests in one tenant, by purchase or otherwise, which brings the whole to one severalty.]

(e) A learned disquisition on the nature of cross-remainders will be found in 1 Prest. Est. 94, 115; et

vide Co. Litt. 195, b. n (1) by Butler. (f) Vide sup. p. 317.