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not, it is apprehended, whether the property be held for a term, or in fee, prejudice the right of the survivor., But it has been said, that under these circumstances, the representatives of the deceased joint tenant will, if such repairs, &c., were wholly paid for by him, have a lien on the land to the amount of the sums advanced (a).

When the purchase money is advanced in unequal shares, the presumption which obtains is, that the parties intended to hold the beneficial interest in severalty, and that it should not be liable to the jus accrescendi. It is considered as highly improbable, that the person who paid the larger part of the purchase money should have meant to buy an interest equivalent only to that of the person who paid the less. And, therefore, it has been established, that the parties effecting a purchase in such manner, take interests in the nature of tenants in common, proportional to the amount of their respective advances; and that, though the estate survives at law, the survivor, as to the surviving share, holds only as trustee for the real or personal [*]representatives of his deceased companion (6). The propriety of this rule has indeed been questioned, on the ground that the inequality of contribution may be referred to and denote the relative value of the parties' lives (c). But unless the presumption of joint tenancy, which this supposition affords, were followed up by some

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(a) Per Sir Joseph Jekyll, M. v. Gibson ; also per Lord HardR. in Lake v. Gibson, 1 Eq. Abr. wicke. 3 Atk. 735 ; 2 Ves. 258. 291.

(c) See Mr. Vesey's note, 9 (6) See 1. Eq. Abr. 291, in Lake Ves. 597.

principle, which would protect and enforce what is thus taken to have been the intention of the parties ; such presumption would in all instances be liable to work, and in many would actually work, a positive injustice. For even supposing that the party advancing the larger sum were really the better life, and did in fact outlive the other, it would still be a sufficient objection to this rule, that the interest of that very party might be immediately destroyed by severance of the jointure. So that in order to justify the presumption of joint-tenancy, it would be necessary for a court of equity to restrain the party advancing the less sum from effecting a severance, and thereby appropriating to himself an interest greater than that which he is presumed to have contracted for. But as the matter rests entirely on presumption, and supposes the absence of any express contract or agreement between the parties in restraint of the right to make partition, it is evident that a court of equity could not interfere by injunction on the head of fraud: and as the power of making and compelling a partition is one of the legal incidents to a joint estate, there is manifestly no other principle in equity, which would sanction a proceeding [*]destructive of this power. The joint-tenancy, therefore, in every case of this kind, would be liable to be severed by the person advancing the less sum immediately after the purchase :Which clearly shows, that if, when the purchase money has been advanced in unequal shares, the presumption in favour of a joint-tenancy were adopted on the supposition, that those shares denoted the value of the respective lives at the time of the purchase, it would always be at variance with the nature of the estate, which is the result of that presumption. But

indeed it is evident, that the supposition has been hazarded with a total disregard to the consequences which flow from it, and to the legal properties and incidents of an estate held in joint-tenancy. On the whole, therefore, the most reasonable supposition in this case appears to be, that each party intended to purchase in proportion to the sum he advanced ; and that the estate was conveyed to them in joint-tenancy, with a view either to prevent the attachment of dower, or to attain some other end, which the nature of the property, or the circumstances of the purchasers, might make desirable.

In the case of money advanced by two or more, on a mortgage, which is made to them jointly, the rule is, that the beneficial interest shall not survive ; the presumption being that each party means to take back his own (a). Hence, if the mortgagees foreclose, the mortgaged estate will, in equity, belong to them as [*]tenants in common (b) (1). And a like consequence, as it seems, grounded on the same principle, ensues, where a joint purchase is made of the equity of redemption. As the parties are equitable tenants in common of the mortgage, they are supposed to purchase the absolute interest on the same mutual footing, and to take distinct and separate interests. It is also observable, that such purchases are some-,

(a) Petty v. Styword, 1 Cha. 2 Ves. 258 ; 3 Ves. jun. 631. Rep. 57. See also, 3 Atk. 734 ; (b) 2 Ves. 258.

(1) Goodwin v. Richardson, 11 Mass. 469. Appleton v. Boyd, 3 Mass. 131.

times made with a view merely to obtain more effectual securities (a),

In Edwards v. Fashion (6), where the two daughters of a mortgagee for a term became entitled, under their father's will to the residue of his personal estate in equal shares, and afterwards purchased the equity of redemption to them and their heirs; it was decided, consistently with the above rule, that there was no survivorship.

(a) York v. Eaton, 2 Freem. 23. See also 19 Ves. 444.
(b) Prec. Cha. 332.

7

[*]CHAPTER V.

PRESUMPTIONS OF LAW CONTINUED.

Of the Performance, and presumed Satisfaction of

Covenants for Family Provisions ; first, in Cases relating to Personal Property ; secondly, in Cases relating to Real.

LORD THURLow is reported to have said, that between cases of performance, and cases of satisfaction, in regard to covenants, he was at a loss to make any broad and useful distinction; and that in both the governing principle was the covenantor's intention (a). A distinction, however, has in this respect always obtained. The assertion, that cases of performance are to be determined by reference to the intention, is denied. That, it is alleged, is to be consulted only in cases of satisfaction. And the rule seems now to be so settled: the inquiry, in cases of the former description, invariably proceeding thus; Has the identical act, which the party covenanted to do, been done ? in the latter; Was the thing done, intended as a substitute for the thing covenanted ? The one is a question of fact; the other only of intention (6).

(a) See 2 Bro. C. C. 395.

(b) See 1 Swans. 219.

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