Jointenants and Tenants in Common
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1744 |
| Date | 01 January 1744 |
| Court | High Court of Chancery |
English Reports Citation: 21 E.R. 1052
HIGH COURT OF CHANCERY
E90] CAP. XXXVII. ' JOINTENANTS AND TENANTS IN COMMON. (A) What shall be a Jointenancy, and not a Tenancy in Common. (B) What shall amount to a Severance of the Jointenancy. (A) what shall be a jointenancy, and not a tenancy in common. 1. If two Persons advance a Sum of Money by Way of Mortgage, and take the Mortgage to themselves jointly, and one of them dies; when the Money comes to be paid, the Survivor shall not have the Whole, but the Representative of him who is dead shall have a Proportion. Decreed 7 Car. 1 [1631-32], Petty and Styward, 1 Chan. Rep. 57. 2. But if two take a Lease jointly of a Farm, the Lease shall survive; but the Stock on the Farm, though occupied jointly, shall not survive; neither shall a Stock used in a joint Undertaking in the Way of Trade survive; and therefore not necessary in Articles of Copartnership to provide against it; per Lord Keeper, Hil. 1683, Jeffereys and Small, 1 Vern. 217. And per Lord Keeper, where Survivorship is to take place, is where Two become interested by Way of Gift, or the like (a). Vide [Hayes v. Kingdome] 1 Vern. 33, [Usher v. Ayleward, ibid.] 361, whether if Two joint Purchasers pay Share and Share alike for a Purchase, and one dies, the Whole shall survive. (a) Accordingly it has been decreed, that if A. devises the Residue of his Estate to his two Executors, or makes several Men Executors, the Survivor shall carry all. 2 Chan. Ca. 64. Though Note, the Lord Chancellor's Expression, why the Survivor shall carry all, because all the Judges will have it so. Ibid. 65. * 3. The Commissioners of Sewers had sold and conveyed Lands to five Persons and their Heirs, who afterwards, in order to improve and cultivate these Lands, entred into Articles whereby they agreed to be equally concerned as to Profit and Loss, and to advance each of them such a sum, to be laid out in the Manurance and Improve-[291]-nierit Of the Land; and it was held, that they were Tenants in Common, and not Jointenants, as to the beneficial Interest or Right in these Lands, and that the Survivor should not go away with the Whole, for then it might happen that some might have paid, or laid out their Share of the Money; and others, who had laid out nothing go away with the whole Estate. Decreed at the Rolls, Trin. 1729, Lake and Gibson: And his Honour held, that where Two, or more, purchase Lands, and advance the Money in equal Proportions, and take a Conveyance to them and their Heirs, that this is a Jointenancy, that is, a Purchase by them jointly of the Chance of Survivorship, which may happen to the one of them as well as to the other; but where the Proportions of the Money are not equal, and this appears in the Deed itself, this makes them 1 EQ. CA, ABE. 292. JOINTENANTS AND TENANTS IN COMMON 1053 in the Nature of Partners; and however the legal Estate survive, yet the Survivor shall be considered but as a Trustee for the others, in Proportion to the Sums advanced by each of them. So if Two, or more, make a joint Purchase, and afterwards one of them lays out a considerable Sum of Money in Repairs or Improvements, and dies, this shall be a Lien on the Land, and a Trust for the Representative of him who advanced it; and that in all other Cases of a joint Undertaking or Partnership, either in Trade, or any other in Dealing, they were to be considered as Tenants in Common, or the Survivors as Trustees for those who were dead. 4. If a Man covenants to stand seised to the Use of A. for Life, and after to Two, equally to be divided, and to their Heirs and Assigns for ever, the Inheritance shall be in Common, (a) as well as the Estate for Life; and there is no Difference where it is to Two, equally divided, and where to Two, equally to be divided. [Anonymous,] 2 Vent. 365, 366; vide [Swayne v. Fawkener] Show. P. G. 210, where it is admitted, that there is no Difference between divided and to be divided; and that Distinction is now exploded. (a) Copyhold Lands were surrendered to the Use of A. B. and C. and their Heirs, equally to be divided between them and their Heirs respectively; and Gould and Turton Justices held it a Tenancy in Common, by Reason of the apparent Intent of the Parties ; but Holt, Ch. Just., held it a Jointenancy, and that the Word equally, imported no more than to have alike; and as to the Word divided, he held, that did not import a Tenancy in Common, for their Possession must be intire, & pro indiviso; to divide would be to destroy it; and it is strange to create an Estate from a Word which implies only, what would destroy it. Fisher and Wigge (I Witt. Rep. 14, Hil. 1700, S. C. in B. B), 1 Salk. 391. But the same Case being cited Mich. 1730, in the Case of Stringer and Philipps, was said by Counsel to be reversed, according to my Lord Holt's Opinion; in which Case it was held by the Master of the Rolls, that there was a Difference between Words which create a Tenancy in Common in a Will and in a Conveyance; for that though the Words, equally to be divided, in a Will, create a Tenancy in Common; yet it is not by force of the Words themselves, but by the Intent of the Testator, that there should be no Survivorship; and he said there were but two Ways of creating a Tenancy in Common by Conveyance, viz. either by limiting it to them expressly as Tenants in Common, or else, by limiting a Moiety, or a Third, or other undivided Part, to one ; and the other Moiety, or Third to another, &c., for if otherwise, though the Words, equally divided, be used; yet they shall signify only an equal Division and Proportion of the Profits. Vide post, 292, c. 11. 5. If a Man conveys his House and four Farms to Trustees, upon Trust that his two Sisters might cohabit in the Capital House, and equally divide the Rents and Profits of the four Farms betwixt them, and the Whole to the Survivor of them, this shall be a Jointenancy. Decreed' Mich. 1694, Clerk and Clerk, 2 Vern. 323, for although the Words, equally to be divided between them, do some-[292]-times in a Will make a Tenancy in Common; yet it is only by Way of Construction. (S. C. but not S. P. post [1 Eq. Ca. Abr.], 293.) (If a Man devises Lands to his two Sons and their Heirs for ever, and the longer Liver of them, to be equally divided between them after...
To continue reading
Request your trial
-
Jones v Kernott
...A and B as joint tenants, whereby A and B held as equitable tenants in common in proportion to their contributions ( Lake v Gibson (1729) 1 Eq Cas Abr 290). In Stack v Dowden [2007] UKHL 17, a majority of the House of Lords held that this rule no longer applied in the case of 'matrimonial ......
-
Commissioner of State Revenue v Rojoda Pty Ltd
...323–324, 341. See now Banks, Lindley & Banks on Partnership, 20th ed (2017) at 666 [18–07], 692–696 [18–63]–[18–66]. 41 Lake v Gibson (1729) 1 Eq Ca Abr 290 at 291 [ 21 ER 1052 at 1053]; Lake v Craddock (1732) 3 P Wms 158 at 159 [ 24 ER 1011 at 1012]; Lyster v Dolland (1792) 1 Ves Jun 431 a......
-
Table of Cases
...v Chandler, [1944] KB 368 (CA).................................................................. 45 Lake v Gibson (1729), 1 Eq Cas Abr 290, 21 ER 1052 ......................................... 87 Langer v McTavish Bros Ltd, [1932] 4 DLR 90 (BCCA) ...................... 172, 173, 174 Lasalle......
-
Co-Ownership
...10 Ibid at 496. See also Watt v Watt Estate , [1988] 1 WWR 534 at 539, 49 Man R (2d) 317 (CA). 11 Lake v Gibson (1729), 1 Eq Cas Abr 290, 21 ER 1052. 12 (1788) 2 Cox 92 at 93, 30 ER 42. THE LAW OF PROPERTY 88 The presumption of resulting trust has weakened over time and can now be rebutted ......