and wife, and its distinguishing feature is that during their joint lives neither can destroy the right of survivorship without the consent of the other party.18

111. How Tenancy in Common Is Created. - A tenancy in common exists where two or more persons hold possession of property at the same time by several and distinct titles. The quantities of their estates may be different, their proportionate shares may be unequal, and the mode of acquiring these titles may be unlike. The only essential unity between them is that of possession.** There is no survivorship between tenants in common. Each owner, in respect of his share of the common property, has all the rights, except that of sole possession, that a tenant in severalty would have.'

188

Tenancy in common may be created either by deed or by destruction of a joint estate. Estates held in common may be dissolved (1) where one tenant acquires the interests of all the remaining tenants, (2) by partition, that is, where the tenants make a division of the property among themselves.1 Under certain circumstances joint mortgagees are joint tenants. If one of the mortgagees die, the survivors may proceed in their own name and take the necessary steps for foreclosing the mortgage without making the heir or personal representative of the deceased comortgagee a party to the suit. If a mortgage be given to two or more persons to secure their several debts, the mortgagees are tenants in common without the right of survivorship." After the foreclosure of a mortgage, although the debt which it was given to secure may have been a joint one, the mortgagees become tenants in common of the estate, the interest of each being proportionate to his share of the debt.11

THE LAW OF PROPERTY

(PART 2)

ALIENATION OF INTERESTS IN LAND

1. Incident to the ownership of land is the right to alienate whatever interest one may have therein. Alienation may be effected (1) by operation of law, and (2) by act of the parties. Alienations are voluntary, those intended deliberately by the parties to carry out their own arrangements; and involuntary, those that take effect independently of the wishes of the parties, or, at least, of one of them.'

ALIENATION BY OPERATION OF LAW

2. Involuntary alienations (by operation of law) may take place in various ways, as by inheritance, by escheat, by forfeiture, etc.

INHERITANCE

3. The disposition of interests in land, the owner of which has died intestate, that is, leaving no will disposing of it, is governed by the rules of inheritance as established by the common law and the statutes. These rules are based on the natural affections of the human heart and on natural justice, their object being to supply the absence of a last will providing for the distribution of the decedent's estate. They seek, therefore, to conform in every case, as nearly as possible, to the probable current of those affections which would have given direction to the provisions of such will."

All titles to land are acquired either by descent or by purchase. Persons who inherit estates take by descent; estates acquired in any other way are taken by purchase.

1 Jenks's Modern Land Law, pp. 191, 192. 28 Leigh (Va.) 368-389 (1837). For notice of copyright, see page immediately following the title page

4. Definitions. - The word inheritance, in its usual acceptation, applies to the descent of real property; but in its popular signification, it includes all the methods by which a person takes property from another at his death, except by devise, and includes distribution, as well as descent."

Descent, or hereditary succession, is the title whereby a person on the death of his ancestor acquires his estate as the heir at law; the transmission of an estate by inheritance.* In a strict technical sense, the term descent is applied to the devolution of real property, and distribution and succession are terms applied to the devolution of personal property."

An heir is he upon whom the law casts the estate immediately upon the death of the ancestor, and an estate so descended on the heir is called an inheritance.

The term ancestor in law means merely the person from whom the estate passes and not a progenitor as in the popular acceptation. It is sometimes used synonymously with kindred, and embraces all from whom a title by descent can be derived under any circumstances. In statutes, the word is sometimes used as the correlative of heir."

A descendant is one who proceeds from the body of another, however remotely. The word is coextensive with issue, but does not embrace others not of issue; nor does it extend to next of kin or heirs at law, for these phrases comprehend persons in the ascending line, and may also include collaterals."

A distributee is a person who is entitled under the statutes of distribution to the personal property of one who has died intestate."

A person's kindred, in the proper signification of the word, means such persons as are related to him by blood. But the term is sometimes used to include a relation in law; it includes collateral as well as lineal relations."

333 N. J. Law 387-413 (1867).

425 Tex. 232-241 (1860).

533 N. J. Law 413 (1867)

625 Mich. 185-188 (1872); 19 Ind 60-62 (1862).

7132 III. 287 (1890).

89 Ired. (N. C.) 279 (1848).

9 62 Ga. 144 (1878); 84 Ala. 388.

Consanguinity is the connection, or relation, of persons descended from the same stock or common ancestor. It is either lineal or collateral. Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other, as between the intestate and his father, grandfather, great grandfather, and so upwards in the direct ascending line; or between the intestate and his son, grandson, great grandson, and so downwards in the direct descending line." Collateral consanguinity is that which exists between persons who have descended from the same common ancestor, but not from each other. They spring from the same common root, or stock, but in different branches." The children of brothers are collateral relatives, having different fathers but the same common ancestor (grandfather), and all have a portion of his blood in their

veins.

5. All kindred are descendants, ascendants, or collaterals. There are three classes of kindred: (1) One's children and their descendants; (2) his parents and their ascendants; and (3) his collateral relatives, which include the person's brothers and sisters and their descendants, his uncles, cousins, and relatives, of either sex, who have not descended from a brother or sister of the deceased. The husband or

wife of a deceased person is not his or her kindred."

In lineal direct consanguinity, every generation constitutes a direct degree, reckoning either upwards or downwards. The father of a person is related to him in the first degree, and so likewise is his son; his grandfather and grandson, in the second degree, and his great grandfather and great grandson, in the third, and so on.'

13

In ascertaining the degree of relationship between collateral kindred, the rule of the civil law has been generally adopted in the United States; which is, to begin with the intestate and ascend from him to the common ancestor, and descend from that ancestor to the next heir, reckoning a degree

102 Black. Comm. 202.

11 Bouv. Law Dict.

12 Ibid.: 14 Vesey (Eng.) 372 (1807).

132 Black. Comm. 203.

from each person, as well in the ascending as the descending lines."

6. A descent may be said to be mediate or immediate in regard to the mediate or immediate descent of the estate of right; or it may be said to be mediate or immediate in regard to the mediateness or immediateness of the pedigree, or degree of consanguinity. Thus, a descent from a grandfather, who dies in possession, to the grandchild (the father being then dead), or from the uncle to the nephew (the brother being dead), is, in the former sense, in law, an immediate descent, although the one is collateral and the other lineal. On the other hand, with reference to the line of pedigree or consanguinity, a descent is often said to be immediate, when the ancestor from whom the party derives his blood is immediate and without any intervening link or degrees, and mediate when the kindred is derived from him, another ancestor intervening between them. Thus, a descent in lineals, from father to son, is, in this sense, immediate; but a descent from grandfather to grandson (the father being dead), or from uncle to nephew (the brother being dead), is deemed mediate, the father and brother being the mediums. of the descent or consanguinity."

No inheritance can vest, nor can any person be the actual complete heir of another, until the ancestor is dead. Before that time the person who is next in the line of succession is called an heir apparent or heir presumptive. Heirs apparent are those whose right of inheritance is indefeasible, pròvided they outlive the ancestor. Heirs presumptive are those who, if the ancestor should die immediately, would in the present circumstances of things be his heirs, but whose right of inheritance may be defeated by the contingency of some nearer heir being born; as a brother or nephew, whose presumptive succession may be destroyed by the birth of a child, or a daughter, whose present hopes may be hereafter cut off by the birth of a son.1

14 Black. Comm. 207; 4 Kent's Comm. p. 412.

156 Pet. (U. S.) 112 (1832).

16 172 Ill. 524 (1898); 2 Black. Comm. 208.