sentatives, and their alienees, on the other; in which the question of notice can have no application, though to the sacrifice, in some instances, of a principle to a mere convenience. Thus, a mortgagee, being also a creditor by bond, cannot tack the bond to his security, as against the mortgagor; but he is allowed to do so as against his heir or devisee; because, it is said, upon the ancestor's death, the bond becomes the proper debt of the heir; and, by statute, of the devisee. But this is only to the extent of real assets descended; and what, then, becomes of the equitable principlethat all debts in equal degree, as bonds are, ought to be paid part passu? The above privilege, however, by a further distinction, extends against the heir and devisee only of the mortgagor, and not against a purchaser from them; since nothing charges land in the hands of an alienee, except what forms a direct lien. Both the original rule and its exceptions are held equally applicable to cases of mortgages for terms of years.

Various other distinctions subsist in courts of equity, where mortgages are principally cognisable, respecting these securities; some of them forming abstract and just rules on the subject; others originating either in our artificial system of real property, or in the frequent efforts of equity to administer justice in each individual case, though at the sacrifice of principle; and then, one exception generates another. The present object, however,

being, to take a general view of those parts of our laws of real property, which most call for correction, enough perhaps, for this purpose, on the subject of mortgages, is to be found in this chapter and the one referred to.

CHAP. VII.-Of Joint-Proprietors.

The preceding qualities of real property all presume a sole owner. It occasionally, however, belongs to more proprietors than one; and their technical distinctions are:-Coparcenors-Tenants in common-and Jointenants. The first of these take by legal succession, forming a class of heirs who, either as females, or deriving from females, divide the estate between them by rules, a summary of which will hereafter be given in speaking of succession. Their respective shares are alienable to the fullest extent; and, in default of alienation, they descend, on death, each to the heir of the individual dying seised. The other two classes derive their interests under actual grants, by deed or will. The shares of tenants in common are alienable; and are, to a general intent, descendible, in the same manner as those of coparcenors. Jointenants, however, have some peculiarities. Each jointenant may aliene his share by deed, but not by will. In default of such disposition, it accrues, not to his own heir, but to the surviving jointenants; and so on to the last survivor. This species of property

originated in the principles of tenure, which discouraged the splitting of fiefs, as producing an inability to perform the lord's services. In other than feudal systems of jurisprudence it is, I believe, unknown; and, from the decay of tenures, and its repugnancy to natural justice, as placing property on a chance, and depriving the creditors and the families of the owners first dying of their just claims, it is now less favoured than formerly. Indeed, in cases of joint-purchasers and mortgagees, each advancing his distinct share of the money, equity interferes, with some exceptions, to prevent its legal effect.

Exclusive of voluntary partition by any of the preceding classes of co-proprietors, a compulsory partition may be effected between them by writ; partly at common law, and partly by statute, during their respective estates, whether of inheritance or partial. The legal remedy, however, even after it was aided by the modern statute of 8 and 9 William III. c. 31, being found tedious and expensive, incumbered as it is with the useless solemnity of a jury, and confined in its operation to the actual estates, whether in fee, or only for life, of the tenants in possession, the court of Chancery has gradually acquired the principal cognisance of partitions, which it extends to the fee; the proceedings in it for that purpose being by a commission to certain persons named, who proceed to a division of the estate without a jury, and make their

return to the court, which is confirmed by a decree, if not objected to by any of the parties. This decree, however, like other proceedings in equity, binds only the person, and not the estate, which must afterwards be conveyed pursuant to it; a circumstance that, if any of the persons interested are infants, or not in existence, renders the partition incomplete at law, until they can convey. A more effectual, as well as more summary remedy, is given, in the instance of allotments under inclosure acts, by the general Inclosure Act of 41 Geo. III. c. 109, s. 16, which empowers the commissioners under any local act, upon the request of any jointenants, coparcenors, or tenants in common, to make partition of the allotments effected by it, notwithstanding any legal incapacity in the parties interested; and to allot the same accordingly. Their adjudication directly binds the land, without any further act.

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50

TITLE IV.

3

OF THE DIFFERENT MODES OF ACQUIRING REAL

PROPERTY.

REAL property is acquired-1. By descent. 2. To a partial extent, by the rights of marriage. 3. By disposition by deed or will. 4. Under the rights of creditors. 5. By escheat or lapse to the lord of the fee, upon either a total failure of inheritable blood, or corruption of it by attainder for felony. 6. By forfeiture to the crown by attainder for treason. And 7. By adverse possession, usually called limitation of time.

Of these, each in its order.

CHAP. I.-Of Descent.

From the general inaptitude of feudal tenures to the faculty of alienation, especially by will, descent was formerly a much more frequent mode of transmission than at present.

Land is descendible, first to the lineal heir; and, failing that, to the collateral, after the following rules-First, among kindred of equal degree, whether lineal or collateral, the males are preferred, and they take in succession, according to