way, when a tenancy in common is meant to be created, to add expreſs words of excluſion as well as deſcription, and limit the eſtate to A and B, to hold as tenants in common, and not as joint-tenants.
As to the incidents attending a tenancy in common: tenants in common (like joint-tenants) are compellable by the ſtatutes of Henry VIII and William III, before-mentioned[1], to make partition of their lands; which they were not at common law. They properly take by diſtinct moieties, and have no entirety of intereſt; and therefore there is no ſurvivorſhip between tenants in common. Their other incidents are ſuch as merely ariſe from the unity of poſſeſſion; and are therefore the ſame as appertain to joint-tenants merely upon that account: ſuch as being liable to reciprocal actions of waſte, and of account, by the ſtatutes of Weſtm. 2. c. 22. and 4 Ann. c. 16. For by the common law no tenant in common was liable to account to his companion for embezzling the profits of the eſtate[2]; though, if one actually turns the other out of poſſeſſion, an action of ejectment will lie againſt him[3]. But, as for other incidents of joint-tenants, which ariſe from the privity of title, or the union and entirety of intereſt, (ſuch as joining or being joined in actions[4], unleſs in the caſe where ſome intire or indiviſible thing is to be recovered[5]) theſe are not applicable to tenants in common, whoſe intereſts are diſtinct, and whoſe titles are not joint but ſeveral.
Estates in common can only be diſſolved two ways: 1. By uniting all the titles and intereſts in one tenant, by purchaſe or otherwiſe; which brings the whole to one ſeveralty: 2. By making partition between the ſeveral tenants in common, which gives them all reſpective ſeveralties. For indeed tenancies in common differ in nothing from ſole eſtates, but merely in the blending and unity of poſſeſſion. And this finiſhes our enquiries with reſpect to the nature of eſtates.
