the latter holds in special tail. Powell v. Powell, 5 Bush (Ky.), 619. Under a devise of an estate "to my three daughters, Margaret, Elizabeth, and Mary" (Mary's children to take their mother's share), there was held to be a tenancy in common between the two daughters and the children of the third, and not a joint tenancy. 5 Binn. (Penn.) 16.

Martin v. Smith,

Webster v. Vande

And a conveyance persons vests the Greer v.

As a general rule, co-trustees are joint tenants. venter, 6 Gray, 428; Parsons v. Boyd, 20 Ala. 112. to a trustee for the use and benefit of two or more equitable estate in the cestuis que trust as joint tenants. Blanchar, 40 Cal. 194.

In cases of contracts between the owner and the cultivator of the land for a division of the crops, they are tenants in common therein until the crops are separated and severed. And either party may sell or mortgage his portion of the crops. Hurd v. Darling, 14 Vt. 214; Knox v. Marshall, 19 Cal. 617; Carr v. Dodge, 40 N. H. 403; Walker v. Fitts, 24 Pick. 191; Williams v. Nolen, 34 Ala. 167; Gafford v. Stearns, 51 id. 434; Jones v. Chamberlin, 5 Heisk. (Tenn.) 210; Mann v. Taylor, id. 267. And see ante, Vol. 2, p. 248. But see Tanner v. Hills, 48 N. Y. (3 Sick.) 662. So, two or more persons, hiring land by an instrument under seal, and agreeing to pay rent in a certain proportion of the crop, are held to be tenants in common, not partners of the crop, until a division is made. Putnam v. Wise, 1 Hill (N. Y.), 234. And where one was tenant for years of a spring, under a lease not recorded, and another purchased one-half of the land in which the spring was, without notice of the incumbrance, and subsequently purchased the other half, with notice, they were held to be tenants in common of the spring while the term continued. Herbert v. Odlin, 40 N. H. 267. So, the lease of a pew in perpetuity makes the lessees tenants in common of realty. St. Paul's Church v. Ford, 34 Barb. 16. So, where there are two several grants of the same land, bearing the same date, upon surveys recorded and certified the same day, and 'purporting to have been made upon warrants issued the same day, the grantees take as tenants in common. Young v. De Bruhl, 11 Rich. (S. C.) L. 638. And see Seckel v. Engle, 2 Rawle (Penn.), 68; Welch v. Sackett, 12 Wis.

243.

But a tenant in dower, not having her dower interest in the land assigned to her, is not a tenant in common with the children of the deceased owner of the land. Grossman v. Lauber, 29 Ind. 618; Jackson v. O'Donaghy, 7 Johns. 247; Ex parte Burgess, 1 Del. Ch. 233. And a privilege reserved to a person in a dwelling-house for a particular purpose, and for a limited time, does not constitute him a tenant in com

mon of the estate.

Abbott v. Wood, 13 Me. 115. So where certain rooms in a house are assigned to a tenant for life, and the reversion in these belongs, with the rest of the house, to another, the parties are not tenants in common. Wiggin v. Wiggin, 43 N. H. 561.

3. Tenancy, how created. The creation of an estate in joint tenancy depends on the wording of the deed or devise by which the tenants claim title, as such an estate can only arise by purchase or act of the parties, and never by descent or act of the law. 1 Broom & Had. Com. (Wait's ed.) 640. A joint tenancy may, however, be created as well by disseizin as by deed or devise. Putney v. Dresser, 2 Metc. (Mass.) 583, 586. Joint tenancies are not favored at law, nor in equity, and a joint tenancy will never be inferred where a testator meant division. Martin v. Smith, 5 Binn. (Penn.) 16.

A devise to the wife for life with the remainder to the testator's daughters, his heirs-at-law, their heirs, executors and administrators, makes them joint tenants. Campbell v. Heron, 1 Tayl. (N. C.) 199. And see Dott v. Willson, 1 Bay (S. C.), 457. So, a conveyance in mortgage to several persons in fee, to secure the payment of a debt due to the mortgagees jointly, creates a joint tenancy (Donnels v. Edwards, 2 Pick. 617); and the assignment of a mortgage to two, as trustees of an unincorporated society, vests the title in them as joint tenants. Webster v. Vandeventer, 6 Gray, 428.

Tenancy in common may be created either by the destruction of the two other estates, in joint tenancy and coparcenary, or by special limitations in a deed or will, or by a conveyance of an undivided share by the owner of the whole. 1 Broom & Had. Com. (Wait's ed.) 651. In a will, the construction of which is less strict than that of a deed, any gift imputing a division or distribution (Ackerman v. Burrows, 3 Ves. & B. 54; Phillips v. Phillips, 2 Vern. 430); or containing words denoting equality of interest, will confer a tenancy in common. Harrison v. Foreman, 5 Ves. 206. And it may be generally stated that, in this country, wherever two or more persons acquire the same estate by the same act, deed or devise, and no indication is therein made to the contrary, they will hold as tenants in common. 1 Washb. Real Prop. 416. And see Wiswall v. Wilkins, 5 Vt. 87; Briscoe v. McGee, 2 J. J. Marsh. (Ky.) 370; Partridge v. Colegate, 3 Har. & McH. (Md.) 339; Miller v. Miller, 16 Mass. 59; Evans v. Brittain, 3 Serg. & R. 135. And where a deed in form creates a joint tenancy in the grantees, yet a court of equity will construe it to be a tenancy in common, where it appears that the purchase was made for the purpose of making great improvements thereon. Duncan v. Forrer, 6 Binn. (Penn.) 193.

When a mortgage is given to two or more persons to secure debts due to them severally, it creates a tenancy in common and not a joint tenancy. Brown v. Bates, 55 Me. 520. And if a mortgage be foreclosed and the estate becomes absolute in the mortgagees, they become tenants in common. Goodwin v. Richardson, 11 Mass. 469. One in possession under a tenant in dower, holding over after her death, and purchasing the shares of some of the reversioners, becomes a tenant in common with the other reversioners (Liscomb v. Root, 8 Pick. 376); and one of several remaindermen may convey his interest and the purchaser becomes tenant in common with the rest. Coleman v. Lane, 26 Ga. 515. Where a testator devised a portion of his land to each of two sons, and directed the residue to be sold and the proceeds divided between others, it was held that the two sons might be regarded as tenants in common with those claiming the residue. Harvey v. Harvey, 72 N. C. 570.

By a devise of the income of one-third part of a farm, the devisee becomes a tenant in common of that portion of the land itself. Andrews v. Boyd, 5 Me. 199. And a deed of land to two persons, by one common boundary, but stating the particular interest conveyed to each, constitutes them tenants in common and not joint tenants. Craig v. Taylor, 6 B. Monr. (Ky.) 457. So, a devise of a tract of land to the two sons of the devisor, and their heirs and assigns until a third son personally appears and demands the land, makes the two sons tenants in cominon. McPherson v. McPherson, Add. (Penn.) 327. And a devise of land to "three children, to be kept as joint stock until the youngest shall arrive at the age of twenty-one years, and then the whole property and its increase to be divided equally between them, to each one-third part," creates a tenancy in common and not a joint tenancy.. Weir v. Humphries, 4 Ired. (N. C.) Eq. 264. So, a devise of land to several brothers "according to quantity and quality, each taking possession of his part when he comes of age; but if one or more of them should die before they come of age, then their part to be equally divided among the survivors," was held to create an estate in common. Harrison v. Botts, 4 Bibb (Ky.), 420.

A deed to a trustee, in trust for a woman and the heirs of her deceased husband (there being but a single child), conveys an estate in common for the benefit of the woman and child. Bazemore v. Davis, 55 Ga. 504.

§ 4. What may be held in common. There may be a joint tenancy, or a tenancy in common, not only of lands and tenements (instances of which are given in the preceding sections), but also of chattels personal, as well as real. See ante, Vol. 2, pp. 246, 248. And

there may be a tenancy in common of an inchoate, as well as of a perfect right. Wilkins v. Wilkins v. Burton, 5 Vt. 76.

It has been held that, where one furnishes materials to another for the making of a machine, on an agreement that he should have a property therein, in the proportion that the sum advanced by him would bear to the whole value, he becomes thereby tenant in common with the maker. Beaumont v. Crane, 14 Mass. 400. And where several persons signed a contract, agreeing to take an interest in a voyage, and a vessel was purchased and fitted out by their agents, the associate signers of the contract were held to be tenants in common, and not partners. French v. Price, 24 Pick. 13. So, part owners of a steamboat are generally to be considered as tenants in common, and not as joint owners or special partners. Knox v. Campbell, 1 Penn. St. 366. See, also, Thorndike v. De Wolf, 6 Pick. 120.

If the owner of land build a house partly on his own land and partly on land adjoining, under an agreement between the owners that he shall repay himself the cost out of the rent, they are not tenants in common of the house, but the title follows the title to the land. M'Adam v. Orr, 4 Watts & Serg. 550. And see Hurd v. Cushing, 7 Pick. 169. So, if two persons have a party-wall, one-half of the thickness of which stands on the land of each, they are not, therefore, tenants in common of the wall, or of the land on which it stands, although the wall was erected at the joint expense of the two proprie tors. The wall in such case follows the property of the soil on which it was built. Matts v. Hawkins, 5 Taunt. 20.

§ 5. Nature and incidents of such tenancy. The following cir cumstances are requisite to a joint tenancy: namely, unity of interest, unity of title, unity of time, and unity of possession; or, in other words, joint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. 1 Broom & Had. Com. (Wait's ed.) 640. This union and entirety of interest between joint tenants has given rise to several incidents peculiar to this estate, the first and most important of which is, the right of survivorship, "by which, when two or more persons are seized of a joint estate of inheritance for their own lives or pur autre vie, or are jointly possessed of any chattel interest, the entire tenancy upon the decease of any one of them remains to the survivors, and at length to the last survivor, and he shall be entitled to the whole estate." Id. And see De Witt v. San Francisco, 2 Cal. 289. This right of survivorship incident to joint tenancy was never favored in equity (see Rigden v. Vallier, 3 Atk. 734); and the principal use of a joint tenancy now in England, is

said to be for the purpose of vesting estates in trustees, who are there invariably made joint tenants. Wms. Real Prop. 111. The policy of the American law is likewise opposed to the doctrine of survivorship; and in many of the States the rule of survivorship is abolished by statute, except in the case of joint trustees, while in others all estates to two or more persons are taken to be tenancies in common, unless expressly declared to be joint tenancies by the deed or instrument creating them, with a similar exception of estates to joint trustees. See 1 Washb. on Real Prop. 408; 4 Kent's Com. 361; Sergeant v. Steinberger, 2 Ohio, 305; Parsons v. Boyd, 20 Ala. 112; Nichols v. Denny, 37 Miss. 59; Lowe v. Brooks, 23 Ga. 325; Rogers v. Grider, 1 Dana (Ky.), 242; Berdan v. Van Riper, 16 N. J. Law, 7; Ball v. Deas, 2 Strobh. (S. C.) Eq. 24. And on this subject the statute law of the particular State should be consulted. Other incidents of a joint tenancy are, that an entry or re-entry made by one is deemed to be the .entry of all (Co. Litt. 319, 364); so livery of seizin made to one joint tenant will inure to all of them (id. 49); and the occupation by one is prima facie an occupation by all. Ford v. Grey, 1 Salk. 285; S. C., 6 Mod. 44; Wiswall v. Wilkins, 5 Vt. 87; Small v. Clifford, 38 Me. 213. See Taylor v. Cox, 2 B. Monr. (Ky.) 429. So, upon the same principle of identity of interest, if an adverse title to the joint estate, or if an older legal title to it, is purchased by one of the joint tenants, the benefit of such purchase will inure to his co-tenants, provided they contribute ratably toward paying the expenses of the purchase. Gossom v. Donaldson, 18 id. 230; Brittin v. Handy, 20 Ark. 381; Lloyd v. Lynch, 28 Penn. St. 419; Page v. Webster, 8 Mich.

263.

Tenants in common properly take by distinct moieties and have no entirety of interest, and therefore there is no survivorship between them. Lands may be held in common, though one tenant holds by a feudal tenure and the other in pure allodium. Putnam v. Ritchie, 6 Paige, 390. So, there is no unity of title nor unity of time between them; but a unity of possession is an essential attribute of a tenancy in common. See ante, 169, § 1; Bernecker v. Miller, 40 Mo. 473; Blessing v. House, 3 Gill & J. (Md.) 290; Story v. Saunders, 8 Humph. (Tenn.) 663. And tenants in common as well as joint tenants are compellable in equity to make partition of their lands. See Potter v. Wheeler, 13 Mass. 504; Higginbottom v. Short, 25 Miss. 160; Ledbetter v. Gash, 8 Ired. 462.

The relation between tenants in common is said to be in principle similar to that between lessor and lessee. Willison v. Watkins, very 3 Pet. 51. The possession of one is the possession of the other; but