1. 2 Blacks. Com.181. Litt. sec. 304
2. 2 Blacks. Com. 181. 2 Woodd. Lec. 127.
3. Litt. sec. 285.
4. Ibid. sec. 285.
5. Co. Litt. 188. a.
6.Wiscot's Case, 2 Co. 60. Litt. sec. 285.
7. 2 Blacks. Com. 181.
8. Co. Litt. 188, a. 1 Co. 101. 2 Blacks. Com. 182.
9. Preston on Abstracts, vol. ii. 67. Mr. Hargrave, in note 13 to Co. Litt. 188. a. intimates that the creation of an estate in joint tenancy, in several tenants, to commence at different times, can only be in cases of limitations by way of use, in which the estate is vested in the feoffee, till the future use comes in esse. But the uses may be raised by common law conveyances, as fine or feoffment, and the limitation may be declared by devise, though it be not by way of use. The distinction was taken in Samme's case, (13 Co. 54.) between a conveyance at common law, and one to uses; and it was said, that joint tenants must be seized to a use when they come to the estate at several times. See, also, Aylor v. Chep, Cro. J. 259. Sussex v Temple, 1 Lord Raym. 310. Oates v. Jackson, str. 1172. Stratton v. Best, 2 Bro. 233. Lord Thurlow, in the last case, would seem to have discarded this very technical distinction; for he declared, that whether the settlement before him was to be considered as the conveyance of a legal estate, or a deed to uses, made no difference; and the estate would be a joint tenancy, though vested at different times.
10. 2 Blacks. Com. 182.
11.Robinson v. Hoffman, 4 Bingham, 562.
12. The statutes of West. 2. c. 22. and 4 Anne, c. 16. on this subject, have, doubtless, been adopted in this country, wherever the English doctrine of joint tenancy exists. (Tucker's Blackstone, vol. ii. 184. note. Laws of N.Y. sess. 10. ch. 6. sess. 11. ch. 4. The N.Y. Revised Statutes, vol. i. 750. sec. 9. have given not only an action of account, but an action for money had and received, as between joint tenants and tenants in common. So, in Massachusetts, assumpsit, as well as account, will lie, if one joint tenant, or tenant in common, receives more than his share of the profits. Brigham v. Eveleth, 9 Mass. Rep. 538.
13. Litt. sec. 311.
14. Litt. sec. 288. Co. Litt. 186. a.
15. Go. Litt. 186. a. According to Mr. Ram, in his Outline of Tenure and Tenancy, p. 149, 150, 151. the only reasonable explanation of the common phrase, that a joint tenant is seized per my et per tout, or by the moiety or half, and by all, is that given in the text, and he says it is the only way in which it ought to be understood. Mr. Preston says Lo the same effect, that joint tenants have the whole for the purpose of tenure and survivorship, while each has only a particular part for the purpose of alienation. Preston on Estates, vol. i. 136.
16. Litt. sec. 280, 281. 286. Co. Litt. ibid.
17. Co. Litt. 185. b.
18. Swift v. Roberts, 3 Burr. Rep. 1438.
19. See. supra. P. 37.
20. Preston on Abstracts, vol. ii. 65.
21. Holt, Ch. J. in Fisher v. Wigg, 1 Salk. Rep. 391.
22. 1 Wils. Rep. 165.
23. Lord Hardwicke, in Rigden v. Vallier, 2 Vesey's Rep. 258. 3 Atk. Rep. 731. Randall v. Phillips, 3 Mason's Rep. 378.
24. Lake v. Craddock, 3 P. Wms. 158.
25. Vol. i. 727, sec. 44.
26. The act of Pennsylvania of 3lst of March, 1812, expressly excepts trust estates.
27. Griffith's Law Register, h. t. Vide the statute laws of the several states on this point. The statute of Massachusetts of 1785, c. 62. declared, that tenancies in common were "more beneficial to the commonwealth, and consonant to the genius of republics." If here was the dignus vindice nodus, the presence of the genius of republics ought to have produced greater effect, and absolutely prohibited parties from creating, at their own pleasure, joint tenancies, in like manner as statutes prohibit entailments, or perpetuities, or other mischiefs.
28. 2 Blacks. Com. 182. Doe v. Parratt, 5 Term Rep. 652. Mr. Ram, in his Outline of Tenure and Tenancy, (p. 170-174.) differs from all the great property lawyers, and undertakes to establish, by able and subtle arguments, that husband and wife are joint tenants, for their tenancy by entireties is a species of joint tenancy. They are seized per taut, but not per my. In the former sense their persons are several, and in the latter one only. They are joint tenants, and tenants by entireties, because each is seized per tout, and they are called tenants by entireties to distinguish them from the joint tenants seized per my and per tout. This ingenious writer has pushed the subject into unprofitable refinements.
29. Litt. sec. 291. Co. Litt. 187, b. Lord Kenyon, 5 Term Rep. 654. Shaw v. Hearsey, 5 Mass. Rep. 521. Jackson v. Stevens, 16 Johns. Rep. 110. Thornton v. Thornton, 3 Randolph, 179. Den v. Hardenburgh, 5 Halsted, 42. See, also, vol. ii. 112. of the present work.
30. Co. Litt. 187. b. Moody v. Moody, Rmb. Rep. 649.
31. Preston on Abstracts, vol. ii. 41. Ibid. on Estates, vol. i. 132.
32. Litt. sec. 292. 294.
33. Litt. sec. 304.
34. Vol. ii. 315-332.
35. Mussey v. Sanborn, 15 Mass. Rep. 155. Cook v. Allen, 2 Mass. Rep. 462.
36. Harg. note 23. to lib. 3. Co. Litt. Calmady v. Calmady, 2 Vesey, jr. 570. Agar v. Fairfax, 17 Vesey's Rep. 533. Baring v. Nash, 1 Ves. & Beam. 551.
37. Bishop of Ely v. Kenrick, Bunb. 322. Cartwright v. Pultney, 2 Atk. Rep. 380. Bliman v. Brown, 2 Vern. 232.
38. Wilkin v. Wilkin, 1,Johns. Ch. Rep. 111. Phelps v. Green, 3 Ibid. 302. 4 Randolph, 493. Martin v. Smith, State Eq. Rep. S. C. 106.
39. Vol. ii. 320. sec. 16. Ibid. 329. sec. 79.
40. New York Revised Statutes, vol. ii. 322, sec. 35. 36. Ibid. 330. sec. 84.
41. Ibid. 330. sec. 83.
42. Clarendon v. Hornby, 1 P. Wms. 446.
43. Litt. sec. 241, 242.
44. Preston on Estates, vol. i. 138.
45. Co. Litt. tit. Parceners, 163-175.
46. Vol. i. 753. sec. 17.
47. In Virginia, the statute of descents calls all the heirs, male as well as female, parceners.
48. Litt. sec. 292. 294. 298. 302. 2 Blacks. Com. 192. Preston on Abstracts, vol. ii. 75, 76.
49. Preston on Abstracts, vol. ii. 277.
50. Bartlett v. Harlow, 12 Mass. Rep. 348. Mitchell v. Hazen, 4 Conn. Rep. 495. Griswold v. Johnson, 5 ibid. 363.
51. Bro. tit. Feoffment, pl. 45. Heatherley v. Weston, 2 Wile. Rep. 232.
52. Litt. sec. 311. 314. Co. Litt. ibid. Rehoboth v. Hunt, 1 Pick. Rep. 224. Decker v. Livingston, 15 Johns. Rep, 479.
53. Bro. tit. Feoffment, pl. 45. Butler's note 80. to Co. Litt. 193. a.
54. Co. Litt. 200. b.
55. Vol. i. 750. sec. 9.
56. See Jones v. Harraden, 9 Mass. Rep. 541. Brigham v. Eveleth, ibid. 538.
57. Co. Litt. 199. b. Fairclaim v. Shackleton, 5 Burr. Rep. 2604. Doe v. Prosser, Cowp. Rep. 217. Peaceable v. Read, 1 East's Rep. 568.
58. Keay v. Goodwin, 16,Mass. Rep. 1. Clowes v. Hawley, 12 Johns. Rep. 484.
59. F. N B. 127. a. Co. Litt. 54. b. 200. b. Bowles' case, 11 Co. 32. b.
60. Carver v. Miller, 4 Mass. Rep. 559.
61. Jackson, J., in Doane v. Badger, 12 Mass. Rep. 70. Mumford v. Brown, 6 Cowen's Rep. 475.
