“hold, scil., the one moiety to the one and to his heirs, and the "other moiety to the other and to his heirs, they are tenants in "common (g). "If a man infeoff two joint-tenants in fee, and the one of them "alien that which to him belongeth, to another in fee; now "the alienee, and the other joint-tenant, are tenants in com"mon (h). 66 Also, if three joint-tenants 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 joint"tenants (2). "Also, if there be two joint-tenants in fee, and the one giveth "that to him belongeth, to another in tail; and the other giveth "that to him belongs, to another in tail; the donees are tenants "in common (k). "Also, if there be two joint-tenants in fee, and the one letteth "that to him belongeth, to another, for term of his life; the tenant "for term of life during his life, and the other joint-tenant which "did not let, are tenants in common (1). 66 Also, as there be tenants in common of lands and tenements, " &c. as aforesaid, in the same manner there be of chattels real ❝and personal. As, if a lease be made of certain lands to two 66 men, for term of twenty years, and when they be of this pos"sessed, the one of the lessees grant that which to him belongeth, "to another, during the term; then he to whom the grant is made, and the other, shall hold and occupy in common (m). 66 "If two parceners be, and the one alieneth that to her be longeth to another; then the other parcener and the alienee are "tenants in common (n). 66 66 “Also note, that tenants in common may be by title of pre scription; as, if the one, and his ancestors, or they whose “estate he hath in one moiety, have holden in common the same moiety with the other tenant which hath the other moiety, and "with his ancestors, or with those whose state he hath undivided, "time out of mind of man (o)." Tenants in common are seised per my, and not per tout. They may, therefore, deliver seisin to each other (p). They are not seised per tout. They cannot, therefore, convey to each other by release (q). Tenants in common were not, by the common law, compellable to make partition (r). But they are, at the present day, by means of a writ of partition; tenants in common in fee, or in tail, by the statute 31 Henry VIII. c. 1.; and for life, or years, by the 32 Henry VIII. c. 32 (s). A partition may likewise be obtained by a suit in equity (†). SECTION XXIII. THERE are two kinds of tenancy in parcenery;-by the common law, and by particular custom (u). 1. Parceners, by the common law, are the immediate heiresses of a tenant in fee, or in tail, or the heirs of such heiresses (v). In the words of Littleton, 66 Parceners, after the course of the com 66 mon law, are, where a man, or woman, seised of certain lands "in fee-simple or in tail, hath no issue but daughters, and dieth, " and the tenements descend to the issues, and the daughters "enter into the lands or tenements so descended to them, then "they are called parceners, and be but one heir to their ancestor. "And they are called parceners, because by the writ, which is "called breve de participatione facienda, the law will constrain "them, that partition shall be made among them (w). 66 “Also, if a man, seised of tenements in fee-simple, or in feetail, (that is, of an estate-tail made to the father and the heirs "of his body) (x), dieth without issue of his body begotten, and "the tenement descend to his sisters, they are parceners. And "in the same manner, where he hath no sisters, but the lands "descend to his aunts, they are parceners (y). "And note, that none are called parceners by the common "law, but females or the heirs of females, which come to lands 66 or tenements by descent; for if sisters purchase lands or tenements, of this they are called joint-tenants, and not parceners (z)." 66 The following passages, by Sir Edward Coke, farther illustrate the nature of coparcenery. "Furthermore, it is to be (u) Litt. S. 241.254. (w) Litt. S. 241. (y) Litt. S. 242. (v) Co. Litt. 164. b. (x) Co. Litt. 165. b. (z) Ibid. S. 254. "observed, that herein also in case of coparceners, sometimes the "descent is in stirpes, (viz.) to stockes or roots; and sometimes "in capita, to heads. As, if a man hath issue two daughters, "and dieth, this descent is in capita, viz. that every one shall "inherit alike. But if a man hath issue two daughters, and the "eldest daughter hath issue three daughters, and the youngest "one daughter, all these four shall inherit; but the daughter of "the youngest shall have as much as the three daughters of the 66 66 eldest, ratione stirpium, and not ratione capitum, for in judg"ment of law, every daughter hath a several stocke or root. “Also, if a man hath issue, two daughters, and the eldest hath issue, divers sons and divers daughters, and the youngest hath "issue divers daughters, the eldest son of the eldest daughter shall "only inherit, for this descent is not in capita; but all the daughters of the youngest shall inherit; and the eldest son is coparcener with the daughters of the youngest, and shall have "one moiety, (viz.), his mother's part; so that men descending "of daughters, may be coparceners, as well as women, and shall 'jointly implead and be impleaded (a).” 66 66 66 It appears that tenants in parcenery, as well as joint-tenants, are seised per my et per tout. To some intents per my, to others per tout. As seised per my, one parcener may deliver seisin to her companion (b). As seised per tout, parceners may convey to each other by release (c). As seised per my, the husband of a parcener is entitled to his curtesy (d); and, it is presumed also, the wife of a parcener to her dower. As seised per tout, one præcipe will lie against parceners. Their seisin is entire, with respect to any stranger's præcipe (e). Sir Edward Coke has distinguished the seisin per my from the seisin per tout of parceners, in the following words :-" And as they be but one heir, and yet several persons, so have they one entire freehold "in the land, as long as it remains undivided, in respect of any stranger's præcipe. But between themselves, to many purposes, (a) Co. Litt. 164. a. b. (e) Co. Litt. 164. a. (b) Ibid. 164. a. (d) Litt. S. 264. Co. Litt. 174. b. "they have, in judgment of law, several freeholds; for the one "of them may enfeoff another of them of her part, and make livery (f)." As parceners are seised per tout, they appear to be a species of joint-tenants. Parceners are compellable, by the common law, to make partition, by means of the writ de partitione facienda (g). A suit in equity is another, and often a preferable, mode of compulsion (h). 66 2. "Parceners by the custom are, where a man seised in feesimple, or in fee-tail, of lands or tenements, which are of the "tenure called gavel-kind, within the county of Kent, and hath "issue divers sons, and die, such lands or tenements shall de"scend to all the sons by the custom, and they shall equally ❝ inherit and make partition by the custom, as females shall do, " and a writ of partition lieth in this case, as between females. "But it behoveth, in the declaration, to make mention of the 66 custom. Also such custom is in other places of England (¿).” SECTION XXIV. Ir a woman, tenant for years, marries, as a term of years is chattel property, it appears the marriage vests the estate in the husband alone, during the coverture (k). For that period, the term is, to many intents, the husband's exclusively. He alone, and without his wife, may create an under-tenancy out of it, or he may sell it (7). Alone, however, he cannot, it should seem, charge the term so as to bind the wife, if she survives him (m). Nor can the husband, unless he survives his wife, dispose of the (f) Co. Litt. 164. a. (g) Litt. S. 241. 247. (m) Co. Litt. 351. a. |