most proper species of conveyance from one joint-tenant to another, for the purpose of effecting a severance, is a release of the moiety or other part of one co-tenant to the other, which, by destroying the unity of interest per mie et per tout, necessary to constitute a joint-tenancy, necessarily works a severance of the joint estate.

If, therefore, there be two joint-tenants in fee, and one of them release to the other, this will destroy the jointtenancy, and vest the whole estate in the releasee, who will then hold in severalty'. But if one of several jointtenants release his share to the others, this will not be a dissolution of their joint-tenancy, for they are in from the first feoffor and not from him who released ".

And so if there be three joint-tenants, and one of them release to his companion all his right, the releasee will hold the releasor's third part, in common with his remaining companion; and the other two parts in jointure, with such companion as before" (1).

But tenants in common cannot release to each other, because a release supposes the releasee to be in possession of things released, whereas tenants in common have several and distinct freeholds, which therefore cannot be transferred to each other without the solemnity of livery, or its equipotent, as in the case of persons solely seised".

But although the usual and proper mode of effecting a severance between joint-tenants is by release, yet as it is essential to a continuance of their estate, that they be seised

(1) But one joint-tenant cannot enfeoff his companion, because, as a feoffment operates by livery, and as both joint-tenants are already seised per mie et per tout, this would be to make livery of that which he already has, which would be absurd.

JOINT

TENANCY.

JOINTTENANCY.

What disposition with a stranger will

work a severance.

per mie et per tout, any thing that tends to narrow that interest, so that they are no longer seised throughout the whole, and throughout every part, is a severance or destruction of the jointure P.

And therefore, if two joint-tenants enter into an agreement to part their lands, and hold them in severalty, they are no longer joint-tenants in equity, for they have no longer a joint interest in the whole, but only a several interest in their respective parts.

And so an agreement between joint-tenants of an advowson, that they will be tenants in common, and that each shall present, has been held to amount to a severance and release. And even joint-tenants admitting, in an answer in Chancery, that they had agreed to sever, has been held sufficient to effect an equitable severance of the joint estate'.

One joint-tenant, or tenant in common, letting his part for years, or at will, to his companion, will not, however, be a severance; for this gives him only a right of taking the whole of the profits, for which he may contract with his companion, as well as with a stranger for any indifferent interest".

2. What Disposition with a Stranger will work a

Severance.

Generally speaking, every alienation or conveyance, by either of the joint-tenants to a third person, will, by destroying the unity of title, sever the joint-tenancy, and turn

P Co. Lit. 123, a. 188, a; 2 Blac. Com. 185.

Co. Lit. 188, a. 193, a;
Hinton v. Hinton, 2 Ves. 634;
2 Blac. Com. 185.

Carth. 505; Salk. 43,
S. C.; Ld. Raym. 535; 12
Mod. 321.

S

2 Bro. Chan. Ca. 224; Patrick v. Powlett, 2 Atk. 54; Hall v. Digby, 4 Bro. Ch. Ca. 214; Baldwin v. Johnson, 2 Wooddes. 132.

Co. Lit. 186, a; Owen, 102; Cro. Jac. 83, 611.

it into a tenancy in common"; for although the unity of
possession continues, the grantee, and the remaining
joint-tenant, hold by different titles, one derived from the
original, the other from the subsequent grant (1). And
therefore it hath been holden in equity, that if three
persons are jointly interested in the trust of a term for years,
and one of them mortgages his third part, the joint-tenancy
is wholly severed'. And so if there be two joint-tenants of
a rent, and one of them disseise the tenant of the land, this
severs the joint-tenancy for a time, the moiety of the rent
being suspended by unity of possession, and therefore
cannot stand in jointure with the other moiety in pos-

session *.

And if there be two joint-tenants of a term, and the
one grants parcel of the term to a stranger, by this the
jointure is severed a.

If there be two joint-tenants, and one maketh a lease
for the life of the lessor, this is a severance of the jointure,
for it destroys both the unity of title and of interest;
and the right of survivorship is wholly taken away, and
their shares on their deaths will go to their respective
heirs. And if in such case the lessor die during the life-
time of the lessee, and of the other joint-tenant, (having
the freehold of the other moiety) the reversion descends
to the issue of the lessor, and the jointure will be severed
and destroyed. But if the lessee for life die in the life-

(1) But a devise by one of the joint-tenants of his
share, is no severance of the jointure, as has been already
observed. See ante, p. 461, n. (1.)

JOINT-
TENANCY.

time of both the joint-tenants, there will be no severance, but they will be joint-tenants as before".

And so if the joint-tenant who has the freehold, die, living the lessor and lessee, if his freehold and fee, which he has in the moiety, descend to his issue, the joint-tenant is wholly defeated *.

And a lease for years by one of joint-tenants in fee, will be a severance pro tanto, and therefore be binding on his companion f.

So if there are two joint-tenants for life, and one of them make a lease for years of his moiety, either to begin presently, or after his death, and die, this lease will be a severance pro tanto, and good and binding against the survivor; for the joint-tenancy in the freehold continues, notwithstanding the lease for years; and in this estate they have a mutual interest in each other's life; so that neither the estate in the whole, nor in any part, can determine or revert to the lessor till both the joint-tenants are dead; for the life of the one, as well as of the other, was made the measure of the estate originally granted by the lessor; and therefore, so long as either of them lives, if the jointtenancy continues, the lessor has no right to the possession; now these joint-tenants having a reciprocal interest in each other's life, it follows that when one of them makes a lease for years of his moiety, such lease does not depend for its continuance on his life only, but on his life and the life of the other joint-tenant, which ever of them shall be the longest liver, according to the nature and continuance of the estate out of which the lease was derived; and then so long as that continues, so long the lease will hold good; and consequently such lessee will be entitled to the possession, as well against the surviving

Co. Lit. 193, a.

• Lit. s. 303.

f Clarky. Turner, 2 Vern.

323.

Ibid.

joint-tenant as the reversioner, till the estate out of which his lease was derived, be fully determined 1 (1).

And it seems that a joint-tenancy may, in equity, be severed by a mere agreement or contract for a conveyance'. Where, therefore, a joint-tenant covenanted to sell his moiety, it was holden to be a severance in equity* (2).

But where there was a recital in a marriage-settlement, to which one only of two female joint-tenants of personal property was party, that she should enjoy her moiety to her separate use, and a covenant on the part of her husband, that she should enjoy it quietly, &c. and that for want of issue of her own body, it should go to the next of kin of her own family," was holden by Lord Hardwicke, not to sever the jointure, as it amounted to no more than a declaration of one of the parties'.

Lit. s. 289; Co. Lit. 184, b. 185, a. 186,a; Moor, pl. 514; 2 Vern. 323.

2 Ves. 634.

k 2 Ves. jun. 257.

1 Patrick v. Powlett, 2 Atk. 154.

(1) But if a rent be reserved on such lease, this rent, it is said, will determine by the death of the lessor; for the survivor cannot have it, because he comes in by title paramount the lease, by which the rent is reserved, and the heirs of the lessor have no title to it, because they have no reversion or interest in the land. Co. 96; Moor, 139; Co. Lit. 185, a. 318.

(2) But at law, a joint-tenancy cannot be severed by these slight circumstances; for joint-tenancies having, in ancient times, been more favoured than tenancies in common, on account of the superior advantages resulting from it to the feudal lord, nothing less than an actual alienation was allowed to effect a severance. Upon the same principles the courts of equity at first refused to consider a mere executory contract as binding on the survivors. See Co. Lit. 184, b. 185 b; Prec. Ch. 124; 2 Vern. 63, 385. But the feudal reasons which occasioned this rigid construction in favour of the joint-tenant's estate, having long since ceased, the same liberality of construction (and perhaps greater) is now admitted in our courts of equity in respect to this as every other estate. See 1 Salk. 158; 1 P. Wms. 4.

JOINTTENANCY.