alienast en fee, ou en fee taille, etc., ou si ascun de ses fitz alienast, etc., que adonques lour estate cessera et serroit voyde, et que adonques mesmes les terres et tenementes immediate remeyndront a le second fitz, et a les heires de son corps engendres etc., sur mesme la condicion, scil. que si le ii fitz alienast etc., que adonques son estate cessera, et que adonques mesmes les terres et tenementes immediat remeyndront al tierce fitz et a les heires des son corps engendres, et sic ultra, le remeyndre as autres de ses fitz, et lyverë de seisin fuist fait accordant.

Sect. 721. Mais il semble per reason que toutes tielx remeyndres en la fourme avauntdit faitez sount voides et de nul value, et ceo pur trois causes. Une cause est, pur ceo que chescun remeyndre que commence par un fait, il covient que le remeyndre soit en luy a qui le remeyndre est taillé per force de mesme le faits quant1 le lyverë de seisin est fait a luy qui avera le franktenement, car en tiel case la nessance et le estre de le remeyndre est per le lyverë de seisin a celuy qui avera le franktenement, et tiel remeyndre ne fuist al second fitz, al temps de lyverë de seisin en le cas avauntdit, etc.

Sect. 722. La seconde cause est, si le primier fitz alienast les tenementes en fee, donques est le franktenement et le fee simple en laliené, et en nul autre, et si le donour avoit ascun reversion, par tiel alienacion, la revercion est discontinue; donques coment per ascun reason poet estre, que tiel remainder commencera son estre et sa nessance immediate apres tiel alienacion fait a un estraunge, qui ad per mesme lalienacion franktenement, et fee simple? Et auxi si tiel remeyndre serroit bon, adonques purroit il entrer sur laliené, lou il navoit ascun manere de droit avant lalienacion, que serroit inconvenient.

Sect. 723. La tierce cause est, quant la condicion est tiel, que si leisne fitz alienast, etc., que son estate cessera ou serroit voyde, etc., donques apres tiel alienacion, etc. poet le donour entrer per force de tiel condicion etc., comme il semble, et issint le donour et ses heires en tiel cas doient pluis tost aver la terre que le second fitz, qui navoit ascun droit devant tiel alienacion, etc.; et issint il semble que tielz remeyndres en le cas avauntdit sont voydes.

1 A later reading generally adopted is 'avant.' See Sir E. Coke's translation.

SIR E. COKE'S TRANSLATION.

1

Sect. 720. Also, I have heard say, that in the time of King Richard the Second there was a justice of the Common Place dwelling in Kent, called Richel, who had issue divers sons, and his intent was, that his eldest son should have certain lands and tenements to him, and to the heirs of his body begotten; and for default of issue, the remainder to the second son, and so to the third son: and because he would that none of his sons should alien or make warranty to bar or hurt the others that should be in the remainder, he causeth an indenture to be made to this effect, viz. that the lands and tenements were given to his eldest son upon such condition, that if the eldest son alien in fee, or in fee tail, or if any of his sons alien, that then their estate should cease and be void, and that then the same lands and tenements immediately should remain to his second son and to the heirs of his body begotten, et sic ultra, the remainder to his other sons, and livery of seisin was made accordingly.

Sect. 721. But it seemeth by reason that all such remainders in the form aforesaid are void and of no value, and that for three causes. One cause is, for that every remainder which beginneth by a deed it behoveth that the remainder be in him to whom the remainder is entailed by force of the same deed, before the livery of seisin is made to him that shall have the freehold2; for in such case the growing and the being of the remainder is by the livery of seisin to him that shall have the freehold, and such remainder was not to the second son at the time of the livery of seisin in the case aforesaid.

Sect. 722. The second cause is, if the first son alien the tenements in fee, then is the freehold and the fee simple in the alienee, and in none other; and if the donor had any reversion, by such alienation the reversion is discontinued: then how by any reason may it be that such remainder shall commence his being and his growing immediately after such alienation made to a stranger,

1 Or Common Pleas.

2 This however is contrary to the authority of the case given above. According to this doctrine, no contingent remainder, such as is created by a grant to A for life, remainder to the heir of B, could be valid.

that hath by the same alienation a freehold and fee simple ? And also if such remainder should be good, then might he enter upon the alienee, where he had no manner of right before the alienation, which should be inconvenient.

Sect. 723. The third cause is, when the condition is such, that if the elder son alien, that his estate shall cease or be void, then after such alienation may the donor enter by force of such condition, as it seemeth1; and so the donor or his heirs in such case ought sooner to have the land than the second son, that had not any right before such alienation; and so it seemeth that such remainders in the case aforesaid are void.

§ 4. Joint Tenants, Tenants in Common, Coparceners.

Another class of rights which attained greater precision during the interval under consideration, and assumed the characteristics which they have possessed ever since, are those which are enjoyed by two or more persons who are simultaneously entitled to rights of property over the same piece of land. From the earliest times it must have been common for two or more persons to have undivided interests of some kind in land 2. By the time of Littleton three kinds of undivided ownership had come to be distinguished as having different attributes. The persons entitled are called joint tenants, tenants in common, coparceners. The main characteristics of this class of rights will sufficiently appear from the subjoined extracts. The point of resemblance between the three kinds is that the co-owners have

1 It is an inflexible rule of common law that the benefit of a condition can only be reserved in favour of a donor or his heirs. A cannot, in a lease to B, impose a condition that on non-payment of rent C may enter. See above, p. 230.

2 In Bracton the general term 'participes' is applied to such persons under whatever title they hold (fol. 428; Reeves, i. p. 447). It was said of such a tenant 'totum tenet et nihil tenet, scilicet totum in communi et nihil separatim per se.' In the Statute 34 Edward I, stat. 1, certain provisions are made 'de conjunctim feoffatis,' providing for the case where a tenant in an assize of novel disseisin pleaded that another was seised jointly with him.

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no separate estate or interest in any distinct portion of the land over which they have simultaneously rights of property, they are each interested, according to the extent of their share, in every part of the whole land and its proceeds.

LITTLETON'S TENURES 1, lib. iii. c. 3. s. 277. Joint tenants are, as if a man be seised of certain lands or tenements, and infeoffeth2 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 joint tenants.

Sect. 280. And it is to be understood, that the nature of joint tenancy is, that he which surviveth shall have only the entire tenancy according to such estate as he hath, if the jointure be continued. As if three joint tenants 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 nothing3. And if the second joint tenant 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 joint tenants shall have.

Sect. 281. And as the survivor holds place between joint tenants, 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

1 The extracts from Littleton's text given above are sufficient as speci mens of the language in which he wrote. The following extracts are from Sir E. Coke's translation.

2 Joint tenants differ from parceners or coparceners in the mode in which their interest is created. Joint tenancy must commence in consequence of alienation inter vivos or by will, an estate in coparcenary arises by devolution ab intestato to daughters, sisters, etc., or sons in gavelkind tenure. All the joint tenants must owe their estate to the same title, that is, the feoffment or other instrument of alienation must operate to convey a coextensive interest, at the same time, to all the joint tenants. See Blackstone, ii. 180.

3 This is the essential characteristic of joint tenancy, distinguishing it both from coparcenary and from tenancy in common.

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 only1.

Sect. 282. In the same manner it is of debts and duties, 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.

Sect. 283. Also there may be some joint tenants which may have a joint estate, and be joint tenants for term of their lives, and yet have several inheritances. As if lands be given to two men and to the heirs of their two bodies begotten, in this case the donees have a joint estate for term of their two lives, and yet they have several inheritances: for if one of the donees hath issue and die, the other which surviveth shall have the whole by the survivor for term of his life, and if he which surviveth hath also issue and die, then the issue of the one shall have the one moiety, and the issue of the other shall have the other moiety of the land, and they shall hold the land between them in common, and they are not joint tenants, but are tenants in

common.

Sect. 287. Also if there be two joint tenants of land in fee simple within a borough where lands and tenements are devisable by testament, and if the one of the said two joint tenants deviseth that which to him belongeth by his testament, and dieth, this devise is void 2. 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 anything in the land by the devisor, but in his own right by the survivor according to the course of law, and for this cause such devise is void. But otherwise it is of parceners seised of tenements devisable in like case of devise.

1 There is and has always been an exception in the case of property jointly owned for purposes of trade: the maxim being, 'Jus accrescendi inter mercatores locum non habet.'

2 A joint tenant, though he can make an effectual alienation inter vivos, cannot do so by will. For the effect of alienation by a joint tenant during his life see sect. 292, below.