tenant, the feoffment of the husband is neither void or voidable, though as against the wife and her heir, it is voidable (g).

But if the wife had survived and entered, she would have become joint-tenant with her companion in the tenancy, unless he had severed the tenancy.

A husband also, who is tenant by entireties with his wife, and joint-tenant with a third person, may take a release of the share of the third person, and such release will be good, without words of inheritance.

Joint-tenancy is when several persons have any subject of property jointly between them, in equal shares, by purchase (h). During the time they are to hold jointly, neither of them has an estate in any particular part. Each has the whole and every part, with benefit of survivorship, unless the tenancy be severed. In the ancient language of the law, joint-tenants per my et per tout.

hold

The real distinction is, joint-tenants have the whole for the purpose of tenure and survivorship, while, for the purpose of immediate alienation, each has only a particular part. Jointtenants, while they are joint-tenants, have not any devisable interest; and a devise by one of several joint-tenants, while the joint-tenancy is in force, will be void, although he survives his companion (i).

(g) 1 Inst. 188 a.

(h) Litt. § 291; 1 Inst. 188 b. (i) Swift v. Roberts, 3 Burr. 1488; Ambl. 617.

That a will may operate even for any part, it must be made, or there must be a republication of the will, after the tenancy becomes sole by survivorship, release, &c.

The case of a husband and wife who hold jointly with a third person, may seem an exception to the proposition, that the tenants must hold by equal shares. In truth it is not one. The law, when left to its genuine construction, considers the husband and wife as one person; consequently, the terms of the description in their legal sense, with reference to the legal unity of the persons of a husband and wife, apply directly to this particular case.

This tenancy may, by the act of either of the parties, be changed into a tenancy in common; and by survivorship before the joint-tenancy is severed, it may be changed into a sole or several tenancy.

Tenancy in coparcenary, is when several persons have, by descent, a tenement among them in common, by equal proportions, as coheirs in the same degree, or in unequal proportions, as coheirs in different degrees.

Their right to the possession is in common, and they have several and distinct estates.

Each of them has a power of alienation over his or her share, in the same manner as a tenant in common has over his share.

Their estates are held in coparcenary, so long only as they claim by descent. As soon as any part is severed, by conveyance, from the

title of the remaining part, the part so severed will be held in common.

Between the alienee and the other coparceners, there will be a tenancy in common. The remaining coparceners will, as between themselves, continue to hold in coparcenary. This is material to the doctrine of descent, and sometimes to the operation of a particular assurance; for tenants in common cannot release to each other; they must convey (k). But coparceners or joint-tenants may release to each other (1). One coparcener may also enfeoff another; but a joint-tenant cannot make a feoffment to his companion in the tenancy (m). All that is to be understood by the latter proposition, is, that an instrument in the form of a feoffment cannot operate in that mode. But if there be a deed, the instrument may, under the liberal construction now applied to assurances, be pleaded as a release (n.) It is observable, however, that one joint-tenant may lease or grant for a particular estate to his companion (o).

According to Finch (oo), a rent annexed to a lease by coparceners, will, by a sale of the reversion, retaining the rent, become a rent in joint-tenancy. This change of tenancy is accounted for on the maxim," the cause ceasing,

(k) Brooke, Feoffment, pl. 45; 1 Inst. 200.

(1) 1 Inst. 163 a. 196 b.

(0) 1 Inst. 186 a. 193 a.

(m) Ib.

(") Brooke, Confirmation, pl. 11.

(00) Finch, Ley. p. 9.

Tenancy in common is, when several persons have several distinct estates, either of the same or of a different quantity, in any subject of property, in equal or unequal shares, and either by the same act or by several acts.

A tenancy in common differs from a jointtenancy in this respect: joint-tenants have one estate in the whole, and no estate in any particular part: they have the power of alienation over their respective aliquot parts, and, by exercising that power, may give a separate and distinct right to their particular parts. Tenants in common have several and distinct estates in their respective parts: hence the difference in the several modes of assurance by them. Each tenant in common has, in contemplation of law, a distinct tenement, a distinct freehold, &c.

Nor should it be passed over without observation, that the same estate may, as to part of the period limited for its duration, partake of a joint-tenancy; and, as to other parts, be a tenancy in common. This state of tenancy may exist, although the estate passes by one limitation. An example occurs in the instance of a gift to two persons, who may not lawfully intermarry, and their heirs of their bodies, and is peculiar to this instance, and other limitations in tail similarly circumstanced.

In their life-time, and till severance, the donees are joint-tenants of the freehold ; so that unless a

severance be made of their tenancy, the freehold will, on the death of one of them, remain with the other. Still, however, the several persons have several and distinct inheritances to some purposes; for, after the death of one of them, the part of that person (subject to a right in the survivor to enjoy the same for his life) will descend to the heirs of the body of the deceased donee ; and the heirs of each person (unless there be a limitation by way of cross-remainders) will be entitled to that part only which belonged to his ancestor, the donee.

Perhaps it may be said, that the construction of the law on a limitation in these terms is, that the donees have several and distinct estates: one for the lives of the donees, the other in tail, expectant, as to the moiety of each donee, on the estate of freehold, and applicable from time to time to his particular part.

For the conclusion that the donees have more than one estate, there is not any reason or authority. The case of King and Edwards (p) seems an authority for the positions advanced in this Essay.

At first view, the case of Owen and Morgan(q), which had for its subject a title derived under a gift to a man and his wife, and the heirs of the body of the husband, seems to negative these positions. The particular circumstances of that case, called for the decision; and the reasons offered in illustration of this case, so (9) 3 Rep. 5.

(p) Cro. Car. 320.