small number of years is in contemplation of law as high an interest as one for a greater number (g). A lease by one joint-tenant of his share to his co-tenant operates quodam modo as a severance, or rather extinguishment, of the jointure for the time (h). If there be three or more, the lessee would hold the share demised to him as tenant in common with the others (i). II.-Tenants in common. Tenants in common are considered as holding several freeholds, or other distinct interests, according to the quantity of their estates, the only unity among them being that of possession (k). The rule of survivorship does not constitute an ingredient in their tenure. On the decease of either of the lessors, the reversion of his share, according to the nature of his estate, will descend to his heir, or devolve on his executor, and carry with it the title to the rent in respect of that share; the lessee and the survivors or survivor holding in common during the continuance of the lease (1). Each tenant in common, therefore, may grant his undivided share for any interest commensurate with his own, either to a stranger, or his companion (m), or two, three, or more, or all, of several tenants in common may concur in one lease, which, however, will operate as the distinct demise of each tenant of his part, and not as the joint demise of all (n); and should be so stated in pleading (0). (g) Co. Lit. 192, a. (h) Co. Lit. 186, a. (i) Jurdain v. Steere, Cro. Jac. 83. Blackasper's case, Noy, 13, semb. S. C. (k) Co. Lit. 189, a. Lit. s. 292. Pullen v. Palmer, 3 Salk. 207. Burne v. Cambridge, 1 Mood. & Rob. 539. (1) Co. Lit. 199, a. Wilkinson v. Hall, 1 Bing. N. C. 713. 718; S. C. 1 Scott, 675; 1 Hodg. 170. (m) Anon. Mo. 71. pl. 194. Snelgar v. Henston, Cro. Jac. 611; S. C., nom. Hudson v. Snellgar, 2 Rol. 212. Story v. Johnson, 2 Yo. & Col. Exch. 586. 596. (n) Bac. Ab. Joint-tenants, (H) 1. Mantle v. Wollington, Cro. Jac. 166. Heatherley dem. Worthington v. Weston, 2 Wils. 232. Burne v. Cambridge, 1 Mood. & Rob. 539. (0) Challoner v. Davies, J Ld. Raym 400-4. There is no estoppel in such case, because an interest passes from each lessor (p). A declaration in debt by the survivor of two tenants in common alleging that he and the deceased were seised of the entirety of the premises demised cannot be supported (g). A reservation of a rent of 20s. to the lessors will entitle them to only one sum of 20s. (r). We may here add a few words respecting the right of tenants in common to join or sever in action in respect of their demise. If the action be in the realty, like ejectment, tenants in common cannot be joined as plaintiffs; for, being brought in respect of the title to the land, and that title being several, the action follows its nature, and must be several (8). So, they must sever in an avowry for rent, which, like the old assize (t), is in the realty (u); unless the rent be in its nature indivisible, as a horse or a hawk (a). And, in like manner, they could not join in a writ of waste against their lessee during the continuance of the term, as in that form of action the land wasted would have been recoverable (y); though it was otherwise if the term had expired, when damages only could be obtained (z). The authorities are not uniformly consistent as to the right of tenants in common to join or sever as plaintiffs, where the action is in the personalty, as in cases of debt or covenant. (p) Bac. Ab. Joint-tenants, (H.) 1. 1 Rol. Ab. 877. 1. 48. 52. Burne v. Cambridge, 1 Mood. & Rob. 539. 541. Brooks v. Foxcroft, Clayt. 137. Anon. Clayt. 140. pl. 253. See, as to leases by estoppel, ante, p. 52. (9) Burne v. Cambridge, sup. (") Co. Lit. 197, a. (s) Lit. s. 314. Co. Lit. 197, b. 200, a. Keilw. 114, a. case, 49. Cutting v. Derby, 2 W. Blac. 1077. Moore v. Fursden, 1 Show. 342. Mantle v. Wollington, Cro. Jac. 166. Doe dem. Bryant v. Wippell, 1 Esp. 360. Hea therley dem. Worthington v. Weston, 2 Wils. 232. (t) Abolished by 3 & 4 W. 4. c. 27. s. 36. (u) Lit. s. 317. Pullen v. Palmer, 3 Salk. 207. Anon. 2 Sid. 2. Harrison v. Barnby, 5 Term Rep. 249. Whitley v. Roberts, M'Clel. & Yo. 107. (x) Lit. s. 314. Co. Lit. 197, b. (y) Anon. Mo. 34. pl. 110. Anon. Mo. 40. pl. 127. The writ of waste was abolished by 3 & 4 W. 4. c. 27. s. 36. (2) Anon. Mo. 40. pl. 127. We may first notice the action of debt; and afterwards that of covenant. Littleton expressly denies their right to distinct actions of debt, stating, that "if two tenants in common make a lease of their tenements to another for a term of years, rendering to them a certain rent yearly during the term, if the rent be behind, &c., the tenants in common shall have an action of debt against the lessee, and not divers actions, for that the action is in the personalty" (a); and this opinion appears to have been entertained by the court in the case of Kitchin v. Buckley (b), notwithstanding a remark to the contrary in Siderfin (c). The more numerous, as well as the more modern authorities, however, are of a different tendency, and appear to warrant the following distinctions : If tenants in common concur in a joint demise for years, with a reddendum of an entire rent to them, they may be coplaintiffs in an action of debt for recovering the rent (d); or each may bring a distinct action for his undivided share (e). In other words, they may join or sever at their election. If the lease be for life they must sever (f). But although they may be co-plaintiffs on their joint demise, yet, as a joint lease by tenants in common is in effect. a demise of their separate shares, the survivor of two lessors, tenants in common, cannot maintain an action of debt against the lessee for the whole rent, declaring on a joint demise (g). (a) Lit.s. 316; cited by Parke, B., in Bradburne v. Botfield, 14 Mees. & Wel. 567. (b) Kitchin and Knight v. Buckley, or Bunkley, T. Raym. 80; S. C. 1 Lev. 109; 1 Keb. 565. 572; S. C., nom. Kitchin v. Compton, 1 Sid. 157. And see Cole v. Banbery, 1 Sid. 49, and Greenwood's case, Clayt. 28. (c) 1 Sid. 402. (d) Anon. Godb. 283. pl. 404. Midgeley v. Lovelace, Carth. 289; S. C. Holt, 74. Martin v. Crompe, 1 Ld. Raym. 341. Burne v. Cambridge, 1 (e) Huntley's case, 3 Dy. 326, a.; (f) Anon. Godb. 283. pl. 404. Tenants in common taking their estates derivatively by devise or purchase must sever (h). If one of two tenants in common bring an action of debt for his share of the rent, he must not declare for the amount, as a specific sum, but the demand must be for a moiety of the whole rent (i); though the necessity for so declaring does not extend to an action of covenant (k). If, however, tenants in common make several demises of their undivided shares, either by distinct instruments, or the same instrument, they must sever in action; for a joint action can only be maintained on a joint demise or contract (1). Actions of covenant are governed by different principles. If the cause of action be one and entire, tenants in common, being covenantees, must join, although the covenant be entered into with them and each and every of them (m). If the covenantees can sue jointly, they are bound to do so (n). And where several tenants in common concurred in a joint demise, and took a joint covenant for payment of the rent, and two died, it was held that the survivors might maintain an action of covenant for the entire rent, though the covenant was to pay it to the lessors according to their several and respective rights and interests therein (0). So, in a late case (p), where A. and B. were seised in fee of the legal estate of an undivided fourth of certain heredita (h) Huntley's case, sup. Midgeley v. Lovelace, sup. Wilkinson v. Hall, 1 Bing. N. C. 713; S. C. 1 Scott, 675; 1 Hodg. 170. And see Cutting v. Derby, 2 W. Blac. 1077; and Greenwood's case, Clayt. 28. (i) Lit. s. 314. Co. Lit. 197, b. Martin v. Crompe, 1 Ld. Raym. 341. Midgeley v. Lovelace, sup. Henniker v. Turner, 4 Barn. & Cres. 157. 159; S. C. 6 Dow. & Ry. 72. (k) Henniker v. Turner, sup. (1) Powis v. Smith, 5 Barn. & Ald. 851; S. C. 1 Dow. & Ry. 490. Wilkinson v. Hall, 1 Bing. N. C. 713; S. C. 1 Scott, 675; 1 Hodg. 170. (m) Slingsby's case, 5 Co. 18, b.; S. C. Anon, Jenk. 262, case, 63; S. C., nom. Beckwith's case, 3 Leon. 160; Anon. 2 Leon. 47, semb. S. C. Windham's case, 5 Co. 8, a. Eccleston v. Clipsham, 1 Saund. 153; S. C. 2 Keb. 338, 339, 347. 385. Withers v. Bircham, 3 Barn. & Cres. 254; S. C. 5 Dow. & Ry. 106. Foley v. Addenbrooke, 4 Q. B. 197; S. C. 3 Ga., & Dav. 64. (n) Foley v. Addenbrooke, 4 Q. B. 197. 208; S. C. 3 Ga. & Dav. 64. Petrie v. Bury, 3 Barn. & Cres. 353. (0) Wallace v. M'Laren, 1 Man. & Ry. 516. (p) Bradburne v. Botfield, 14 Mees. & Wel, 559. ments and mines, in trust for C. and her husband; and D. was seised of another undivided fourth; and E. was seised of the legal estate of the remaining undivided moiety, in trust for F. and G.; and by indenture A. and B., C. and her husband, D., and E., and F. and G., according to their several and respective estates, rights, and interests, demised to the defendant the hereditaments and mines for a certain term, with a reddendum to the several persons above named respectively, and to their respective heirs and assigns, according to their said several and respective estates, &c., the yearly rents thereinafter mentioned; and the lessee covenanted with the same persons, and each and every of them, their and each and every of their heirs, executors, administrators, and assigns, (amongst other things,) to keep the premises in repair, and the same so repaired to deliver up, at the end or other determination of the term, to the lessors (naming them) and their heirs and assigns respectively; it was held that this was a joint covenant, on which none but all the covenantees, or the survivors during their lives, or the survivor of them, could sue, for the name of no one covenantee could be rejected. Parke, B., said (q), that Hopkinson v. Lee (r) was precisely in point, and good law. If the cause of action be separate and distinct, tenants in common, covenantees, must sue severally, though the covenant be joint in terms; but the several interest and several ground of action must distinctly appear, as in the case of covenants to pay separate rents to tenants in common upon demises by them (s). Whether one of several tenants in common, lessors, can sue on a covenant with all to repair, appears to be undecided. That all can sue is perfectly clear (t). Tenants in common, not being themselves the covenantees, but taking their reversion derivatively from the lessor, may elect to join or sever in suing on the covenants which run (q) 14 Mees. & Wel. 564. (r) 14 Law Jour. N. S. Q. B. 101. (8) See cases in note (m), p. 134, sup. and Servante v. James, 10 Barn. & Cres. 410; S. C. 5 Man. & Ry. 299. (t) Bradburne v. Botfield, 14 Mees. & W. 559. 574. |