term by will. If he bequeaths it, and dies before his wife, the bequest is void. If he has not sold, or otherwise legally disposed of it, in his life-time, and his wife survives him, the term re-vests in her again (n). But if her husband outlives her, the estate then vests in him absolutely, as his own property (o).

If a woman, tenant for life, in tail, or in fee, marries, sometimes it is said the husband is seised in right of the wife (p), and sometimes that the husband and wife are seised in right of the wife (q). The former expression is incorrect. In pleading, the latter is always used. To plead a seisin of the husband alone, in right of the wife, is held to be improper, and bad on a special demurrer. The seisin must be pleaded of the husband and wife, in right of the wife. During the coverture, the husband and wife are both seised in right of the wife (r). That the husband and wife are both seised arises, perhaps, from these considerations. The meaning of seisin is possession. The wife is tenant. She is not disseised. Therefore she is in possession. Husband and wife are one person in law. Here it is apprehended this rule applies; and, therefore, the husband and wife being one person, are both seised; which seisin is in right of the wife.

If a husband and wife are seised in tail or in fee, in right of the wife, the statute 32 Henry VIII. c. 28, empowers the husband and wife to grant leases, for any period not exceeding twenty-one years, or three lives, so as to bind the husband and wife, and also the heirs in tail(s); not, however, if the seisin is in tail, remaindermen or the reversioner (t). This statute enacts, "That all leases "hereafter to be made, of any manors, lands, tenements, or other

(n) Co. Litt. 351. a.

(p) Litt. S. 594. Co. Litt. 326. a. 356. a.

(q) Co. Litt. 66. b. 67. a.

(0) Ibid. 46. b. 351. a.

Stat. 32 Hen. VIII. c. 28. s. 1.

(r) Polyblank v. Hawkins, Doug. 314. 1 Wms. Saunders, 253, note (4) 2 ib. 283 (1), (s) Co. Litt. 44. a.

(t) Ibid.

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"hereditaments, by writing, indented, under seal, for term of years, or for term of life, by any person or persons, being of full 66 age of twenty-one years, having any estate of inheritance, either "in fee-simple or in fee-tail, in the right of their wives, or jointly "with their wives, of any estate of inheritance made before the "coverture or after, shall be good and effectual in the law against "the lessors, their wives, and heirs, and every of them, according "to such estate as is comprised and specified in every such in"denture of lease, in like manner and form as the same should "have been, if the lessors thereof and every of them, at the time "of the making of such leases, had been lawfully seised of the same lands, tenements, and hereditaments comprised in such indenture, of a good, perfect, and sure estate of fee-simple "thereof, to their own only uses.

"Provided always, That this act, or any thing contained, shall "not extend to any leases to be made of any manors, lands, tenements, or hereditaments, being in the hands of any fermor, or "fermors, by virtue of any old lease, unless the same old lease "be expired, surrendered, or ended, within one year next after "the making of the said new lease; nor shall extend to any grant "to be made of any reversion of any manors, lands, tenements, 66 or hereditaments; nor to any lease of any manors, lands, tene"ments, or hereditaments, which have not most commonly been "letten to ferm, or occupied by the fermors thereof, by the space "of twenty years next before such lease thereof made; nor to any "lease to be made without impeachment of waste; nor to any “lease to be made above the number of twenty-one years, or "three lives, at the most, from the day of making thereof; and "that upon every such lease, there be reserved yearly during the "same lease, due and payable to the lessors, and their heirs, to "whom the same lands should have come after the death of the

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lessors, if no such lease had been thereof made, and to whom "the reversion thereof shall appertain, according to their estates "and interests, so much yearly ferm or rent, or more, as hath "been most accustomably yielden or paid for the manors, lands, tenements, or hereditaments, so to be letten, within twenty

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years next before such lease thereof made; and that every

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"such person and persons, to whom the reversion of such manors, lands, tenements, or hereditaments, so to be letten, "shall appertain as is aforesaid, after the deaths of such lessors or their heirs, shall and may have such like remedy and advantage, to all intents and purposes, against the lessees thereof, "their executors, and assigns, as the same lessor should or might have had against the same lessees. So that if the "lessor were seised of any special estate-tail of the same here"ditaments at the time of such lease, that the issue or heir of "that special estate, shall have the reversion, rents, and ser"vices, reserved upon such lease, after the death of the said "lessor, as the lessor himself might or ought to have had if he "had lived.

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“Provided alway, That the wife be made party to every "such lease, which hereafter shall be made by her husband, of any manors, lands, tenements, or hereditaments, being the "inheritance of the wife; and that every such lease be made by "indenture, in the name of the husband and his wife, and she "to seal to the same; and that the ferm and rent be reserved to "the husband and to the wife, and to the heirs of the wife, according to her estate of inheritance in the same; and that "the husband shall not, in any wise, alien, discharge, grant, or give away, the same rent reserved, nor any part thereof, longer "than during the coverture, without it be by fine levied by the "said husband and wife; but that the same rent shall remain, "descend, revert, or come, after the death of such husband, unto "such person or persons and their heirs, in such manner and sort, 66 as the lands so leased should have done if no such lease had "been thereof made."

SECTION XXV.

Ir land is granted to a man and his wife, to hold for their lives, in tail, or in fee, they are joint-tenants (u). Thus if A., seised in fee, grants 100 acres to B. and C. his wife, for their lives, in tail, or in fee; B. is seised of all the land, and C. is seised of all the land; together, therefore, or jointly, they are seised per tout (v). If their seisin is in tail or in fee, they may lease under the statute 32 Hen. VIII. c. 28, which, in words, applies to a joint-estate of husband and wife, created after their coverture. This joint-tenancy of husband and wife, created during their coverture, is a particular kind of joint-tenancy, a species that differs essentially from the common joint-tenancy of persons not husband and wife. It is called a tenancy by entireties, a title precisely appropriate to the kind of tenancy, and, with much accuracy, characterizing this joint-tenancy as a species. Other joint tenants are seised per my et per tout. Tenants by entireties per tout only.

The position has been hazarded, that husband and wife, tenants by entireties, are joint-tenants. It should be observed, however, that this appears to be contrary to a received notion of a tenancy by entireties. A tenancy by entireties, has been considered not to be a joint-tenancy, and this idea is sanctioned by the concurrence of opinion of writers of the first eminence (w). But that tenants by entireties are joint tenants may be thought to follow from a consideration of the following points, in which the common joint-tenancy and a tenancy by entireties have a perfect agreement.

If A. grants to B. and C. 100 acres in joint-tenancy, he conveys to B. and C. to hold jointly (x). If A. grants to D. and E. his

(u) Co. Litt. 326 a. 3 Co. 27 b. 30, b. 32. 8 Co. 72.

(w) 2. Bl. C. 182. Prest. Est. 2. edn. 131. 132, 1 Prest. Conv. 51.
(x) Litt. S. 277. 2. Bl. C. 180

(v) Ibid.

wife, 100 acres (not to hold in common), he conveys to D., E. his wife, to hold jointly (y).

and

B. is a tenant, and C. is a tenant (z). So, it is apprehended, D. is a tenant, and E. tenant (a).

B. with C., and C. with B., are seised of the whole 100 acres; are seised per tout (b). D. and E. are each seised of the whole 100 acres; are seised per tout (c).

B. and C. are jointly tenants to the præcipe (d). D. and E. are jointly tenants to the præcipe. (e).

Survivorship takes place between B. and C. (f). Survivorship takes place between D. and E. (g).

In these points, there appears not to be a shade of difference between the tenancy of B. and C., and the tenancy of D., and E. his wife. B. and C. are joint-tenants; then why are not D. and E.? That which distinguishes a tenancy by entireties from the common joint-tenancy is this: that tenants by entireties are not seised per my. They are seised per tout only (h). But because they are not seised per my, does it follow they are not joint-tenants? The common joint-tenants are seised per my; but would they be less joint-tenants if not seised per my? What is it that constitutes a joint-tenancy? A joint seisin per tout. It is not a seisin per my which makes a joint-tenancy. Without that, the common joint-tenants would still be jointtenants. Because tenants by entireties are not seised per my, is surely no reason to make them not joint-tenants. A learned

writer says, tenants by entireties "have not either a joint-estate, a sole or several estate, nor even an estate in common (¿)."

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