of seisin, as to each share, though there is a community of possession between the several part owners.

Tenancy by entireties (u) is when husband and wife take an estate to themselves jointly, by grant or devise, or limitation of use, made to them during coverture, or by a grant, &c. to them, which is in fieri at the time of their marriage, and completed, by livery of seisin or attornment, during the coverture (x).

The husband and wife have not either a joint estate, a sole or several estate, nor even an estate in common. From the unity of their persons by marriage, they have the estate entirely as one individual, and on the death of one of them, the entire tenement will, for all the estate of which they are seised in this manner, belong to the survivor, without the power of alienation or forfeiture (y) of either alone, to prejudice the right of the other.

And this tenancy may be of an estate in tail, as well as an estate in fee-simple, or of mere freehold.

In the accounts of this tenancy it is stated,

(u) 5 Term Rep. 654; Litt. § 291; 1 Inst. 187; Greenely's case, 8 Rep. 71 b; Beaumont's case, 9 Rep. 138; Owen and Morgan's case, 3 Rep. 5; Clithero and Frankiin, 2 Salk. 568; Hob. 3; 1 Inst. 112. 187; Fearne, 48; 2 Vern. 120; 2 Black. Rep. 211; Com. Dig. Est. K. 1; Plowd. Com. 483; 1 Inst. 187 a. b; Symond's case, Mo. 92; Moody v. Moody, Ambl. 649.

(x) Plow. Com. 483; 1 Inst. 187 a. b; 310 a. (y) 1 Inst. 187 b.

that the husband and wife must take jointly;

and this position seems well founded. It is the who are

persons,

legal notion of the unity of two husband and wife, which gives occasion to the construction of an entirety of interest on their tenancy.

In point of fact, and agreeable to natural reason, free from artificial deductions, the husband and wife are distinct and individual persons; and accordingly, when lands are granted to them as tenants in common, thereby treating them without any respect to their social union, they will hold by moieties, as other distinct and individual persons would do (z).

Also, when a grant is made to a husband and his wife and a third person, as tenants in common, each of these three persons will severally have a separate and distinct interest in, and tenancy of, a third part.

When an estate is limited to a husband and wife and a third person, jointly, then, as against the third person, the husband and wife have, in point of ownership, a moiety only; and of this moiety, and also of the other moiety, in case it should become their property by survivorship, the husband and wife will be tenants by entireties; and as to the whole, the husband and wife and third person will be joint-tenants (a).

When husband and wife are tenants by

(x) 1 Inst. 187 b. S. P.

(a) Litt. § 291; 1 Inst. 107. 187; Back v. Andrews, 2 Vern.

120.

entireties in fee, and the wife survives, so that she becomes solely seised, and dies intestate, her heir, it should seem, would take the fee by descent, and the heirs of the blood of the husband, merely as such, would be excluded.

But it is more difficult to ascertain what would be the course of descent of a fee taken by the heir of their two bodies, under a descent to him of an estate-tail to his father and mother, and the heirs of their two bodies, and which he had by common recovery enlarged into a feesimple.

He took by descent from his father and mother; each of his parents was equally the purchasing ancestor. The difficulty is to decide whether the heir of the blood of each parent, or the heir of the blood of the survivor of them, considered as a surviving joint-tenant, should be admitted into the succession.

The probability is, that the decision would, from analogy, be in favour of the heirs of the blood of the survivor.

In Finch's Law (b) it is said, a man and feme sole have a villein, and afterwards intermarry, and the villein purchase lands, they shall not have the lands by entireties, but by moieties, jointly or in common, as they had the villein.

This point is referred to the maxim, 'things are construed according to that which was the cause thereof;' and the point is noticed as it (b) Page 10.

may lead to conclusions on the execution of uses in favour of husband and wife, and as a contrasted case to the lease by coparceners, who reserve a rent, and sell the reversion, retaining the rent; for though they were coparceners of the reversion before alienation, they will, after alienation, be joint-tenants of the rent.

And if an use be limited to a man and his intended wife, preparatory to their marriage, and they intermarry, they would be jointtenants, and not tenants by entireties (c).

When husband and wife are seised by entireties for life, with remainder to the husband in tail, his fine devests the estate of his wife, and turns it to a right of entry (d).

This conclusion flows from the rules of the common law; namely, the power which the husband had over the freehold of his wife.

An alienation by the husband alone, in the life-time of the wife, will, in the event of his surviving his wife, be good for the share of himself and his wife.

In this respect, also, there is a difference between a tenancy by entireties and a jointtenancy. A joint-tenant cannot do more than convey the aliquot part which is his share, indidually.

When the husband and wife are tenants in tail by entireties (e), and when the husband

(c) 1 Inst. 187 b.

(d) Bustard's case, 4 Rep. 121. (c) Beaumont's case, 9 Rep. 138; Baker and Willis, Cro. Car. 471; 2 Abstr. 44.

alone aliens by a fine with proclamations, and dies in the life-time of his wife, the fine excludes the issue in tail from taking as heirs under the intail, and yet the wife retains all her ownership and powers of alienation as donee in tail, in like manner as if the fine had not been levied. She may suffer a common recovery, and bar the remainders, &c. but on her death the estate, deprived of its descendible quality under the intail, may descend to her general heir as heir, but cannot descend to her issue as heirs in tail; unless, indeed, (and this circumstance does not disprove the point, but merely adds a qualification to it,) there be a confirmation to her and the heirs in tail, so as to revive the old, or rather create a new estatetail.

And when husband and wife and a third person are joint-tenants, as between themselves, and the husband and wife are tenants by entireties, as between themselves, and the husband makes a feoffment of the entirety in the life-time of his wife and joint-tenant, and then the husband dies, the wife and the other joint-tenant are jointtenants of the right (ƒ); and if she die in the life-time of the other joint-tenant, the right will vest in him by survivorship.

But if the husband had made a feoffment of one moiety only, and he and his wife had died, the right to their moiety would have survived to the joint-tenant; for as against the joint(f) 1 Inst. 187 b. 188 a.