
    *Jones v. Jones.
    [Saturday, November 3, 1798.]
    Patents — Inclusive—Joint Tenants. — Inclusive patent to three, creates a j oint tenancy.
    Same — Same—Same—Case at Bar. — A father and three sons obtain separate patents for 400 acres of land, each adjoining- to one another; and the father obtains a patent for another tract of 400 acres; afterwards, the three take one inclusive patent for the whole tracts, and another tract of 1162 acres. This destroys the separate estates in the first three tracts; and creates a joint tenancy in the whole 2762 acres, comprised in the patent.
    In a writ of right (brought by John Jones against William Jones) the jury found a special verdict, which stated: That Thomas Jones, in his life-time, obtained a patent for 400 acres of land on the 10th of June, 1740. That John Jones, the demandant, obtained a patent dated the 10th of June, 1740, for a tract of land adjoining the said 400 acres, and containing 400 acres also. That William Jones, the defendant, on the 10th of June, 1740, obtained a patent for a tract of land adjoining the last mentioned tract; and, likewise, containing 400 acres. That the said Thomas, on the 12th of January, 1746, obtained a patent for 400 acres. That the said Thomas was father to the said John and William. That on the 10th day of September, 1755, an inclusive patent was obtained by the said Thomas, John, and William, for a tract of land containing 2762 acres; which included as well all the tracts for which patents were obtained by the said Thomas, John and William, severally as aforesaid, as 1162 acres never before granted. That the said Thomas, John and William, sold part of the said 1162 acres to Hog Glover. That the said Thomas died between the years 1766 and 1770 ; and, that the said John Jones is his eldest son and heir at law. That the said William is in possession of the said 400 acres, patented to his father on the 12th of January, 1746; which is the land in controversy. That John Jones, the demand-ant, is in possession of the 400 acres patented to his father on the 10th of June, 1740; and, of the tract for which he himself obtained a patent, as aforesaid, on the same day and year last mentioned. That, besides the tract of land in contest, the said William Jones is in possession of the tract for which he obtained a patent 459 *the 10th of June, 1740, as aforesaid; and, if upon the whole matter, the law be for the demandant, then the jury find for him; but, if the law be for the tenant, then they find for him.'
    The District Court gave judgment for the demandant; and from that judgment the tenant, appealed to this Court.
    Marshall, for the appellant.
    The question is, whether the first patents were surrendered by the acceptance of the last? Por, if so, the parties were joint-tenants, and the judgment of the District Court is consequently wrong. The case is not within the act of Assembly ; and, therefore, it is to be considered independent of it. But, according to the general doctrines of the law, the accepting of a subsequent patent is a surrender of the first; because the party, by accepting, admits the right to grant; and, therefore, is estopped from saying at a future time, that the public had no estate in the premises; but that a prior right existed in himself.
    Randolph, on the same side. This is the case of a special verdict in a writ of right, and as to that point, must depend on the opinion of the Court in the case now under consideration. Shaw et al. v. Clements, ante, 429.
    But, upon the other points, I contend that the judgment is erroneous. Under the Royal Government, all lands were held mediately or immediately of the Crown, which became entitled upon an escheat or forfeiture; and, therefore, the King was capable of taking a surrender. Tenant in fee simple, indeed, cannot surrender to a tenant in fee simple, Shep. Touch. 303; but a Lord having remedy by cessavit, may accept a surrender. Shep. Touch. 303, 304. Surrenders are either express, or in law; and the present case is of the last kind. Shep. Touch. 300, 305. [Davison, v. Bromley v. Stanley,] 4 Burr. 2210. The act of 1748, [5 Stat. Larg. 408,] for regulating conveyances, does not affect the case; for, it was a maxim of the law in those days, that the King was not bound by a statute, unless he was expressly named in it, and he is not named in that act.
    *Call, contra.
    The cause is clearly in favor of the appellee, whether it be considered upon the intention of the parties, the act of Assembly, or the principles of the common law relative to surrenders.
    1. Upon intention.
    The object of the parties was plainly not to alter the old estates and expose them to the hazard of survivorship, to the injury of their families; but merely to annex the new lands to the old, in order to avoid the trouble and charge of new improvements, and the forfeitures to which they would have been liable, had they taken Up the new land independently of, and without reference to the old.
    That this was their intention, is evident from the following reflections; namely, that it is not credible, that the eldest son would have consented, not only to have put his own tract in hazard, but to have destroyed his hopes by descent, for the mere chance of getting the estate of his jmunger brother. That would have been to have staked two chances against one: A game, much too bold for any man in his senses to have played. Nor is it probable, that the younger son would have surrendered his own lands, (which perhaps were the only inheritance he might have to leave his family,) upon the mere chance of outliving his father and brother: And the father could have had very little temptation to sacrifice the freehold, from which his declining years were to be supported, and to put it out of his power to provide for the rest of his family, upon the mere expectation of out-living his sons; whose chances of survivorship, according to the course of nature, were much better'than his own.
    Therefore, if the intention of the parties only be considered, it is manifest that they did not mean to disturb their prior titles; which they desired should continue as 461 they were, without danger *or hazard ; and that they merely designed to avoid the inconveniences resulting from a separate patent for the 1162 acres, which they wished to take up in one body, in order to get rid of the expenses of obtaining separate patents.
    2. Upon the act of Assembly.
    The act does not contemplate such cases under any other point of view; than that just mentioned; because the inclusive patent is but a substitution of the old double patent, which was clearly understood in the sense contended for by us. -
    For, the act of 1677, [2 Stat. Larg. 412,] recites, that “diverse persons, to save the trouble and charge of seating new taken-up dividends of lands, doe customarily add new parts of land to former patten ted dividends;” and, therefore, it merely gives the Secretary an additional fee of so many times eighty pounds of tobacco, as there are several tracts in the patent, without altering the course of proceeding, or disturbing the estates.
    This plainly proves, that the former practice was expressly founded on the motive of avoiding the trouble and charge of new-seating the added lands; and that the several tracts, in the opinion of both Legislature and people, .were still considered as separate and distinct.
    Therefore, as the inclusive patent, only came in the room of the double patent, it is fair to extend the same idea to that also.
    But then, it will perhaps be said, that the act of 1748, [5 Stat. Larg. 418,] declares, that all the tracts shall be accounted as one entire tract; and, therefore, that it must be taken as a joint estate. That part of the act. though, instead of favoring, militates against the cónstruction contended for by the appellants.
    1st. Because such a declaration would have been unnecessary, if a surrender oí the first patent could be implied; for, it would have inevitably followed, 462 *from the surrender, that the whole would have been considered as one tract, without any Legislative declaration to that effect; and, therefore, the declaration proves, that the Legislature did not suppose that a surrender would be implied.
    2d. Because there is a difference between the tract and the estate in the tract. For, a man may hold several parcels as one tract, and yet his title to them may be founded on different rights. So, here, the parties would hold the whole as one entire tract, but their rights would be founded on different patents.
    3d. Because the act afterwards declares, that any improvements thereafter made, shall extend to the whole tract; which would have been useless, if a surrender could be implied; for the improvements would, in that case, have extended to the whole, necessarily. The insertion of it, therefore, proves, that the Legislature thought that the tract was not to be considered as entire to every purpose.
    4th. Because the act also says, that the future improvements shall extend towards saving of the whole tract, in proportion to the improvements; which would have been likewise unnecessary, unless the tracts were considered as separate, as the improvements would necessarily have saved the whole. Besides, the expression supposes that some part would have seen saved by the improvements, which could not have been, without saving the whole, unless the tracts were considered as separate.
    Of course, they were to be considered as one entire tract sub modo only; that is to say, so as to let the improvements extend to save the whole; but the titles were to remain as before, and this for a good reason ; because, entries after the first patents, but prior to the inclusive, might otherwise have gained a preference.
    *Therefore, the true construction of the act accords with the views of the parties, which were to retain their old estates, and only to become joint tenants of the 1162 acres.
    3. Upon Common Law principles.
    Upon these, it is clear, that no surrender was wrought, by the inclusive patent.
    A surrender must be of a greater estate into a lesser; for, the lesser must be capable of merging in the greater. Shep. Touch. [300;] Perk. 584; 2 Black. Com. 326.
    But here, was no greater estate in which the lesser might merge. For the King had only a possibility, and no estate; and an estate in fee cannot merge in a possibility. Shep. Touch. 303.
    To this rule there are but two exceptions;
    1st. The case of a copyhold, which, depending on the custom, no argument can be drawn from it; besides, there, the tenant is merely tenant at will, and the estate is in the Lord; who, having the greater and worthier title, is, consequently, capable of taking a surrender.
    2d. The case of the cessavit, mentioned by Mr. Randolph, and stated in Shep. Touch, and Perkins. But the reason of that case, does'not hold here, for it supposes a forfeiture to have actually incurred; so, that the Lord has the estate revested in him by the tenant’s neglect; but, having only a right of entry, he uses the cessavit to enforce it. Therefore, he has the whole estate in him, and the surrender, only operates as a release of the tenant’s right. Consequently, before that case can be brought to bear on this, it will be necessary7 to shew, that an actual forfeiture had incurred, prior to the issuing of the new patent; so, that the government had a right of action for the recovery. But, the patent supposes the contrary; and, that the patentee’s rights were effectual and unimpaired.
    ^Therefore, as neither of these exceptions contravene the general doctrine, it remains in full force; and, consequently, there could not be a surrender, even by7 deed, in such a case; but, if the deed operated at all, it would be by way of grant, and not of surrender.
    But, it is a rule, that whatever cannot pass without deed, cannot be surrendered without deed. Perk. 581. Now, here, the grant was by deed ; and, by law, must have been so. Therefore, it could not be surrendered without a deed.
    The mere destruction of the patent would not have divested the estate, [Bolton v. The Bish. of Carlisle,] 2 H. Black. 263; and, therefore, if the patents had actually been delivered up and cancelled, that would not have revested the estate in the King, without a deed. Much less is it so revested, when the patents have been retained and not delivered up.
    Of course, a surrender by implication cannot be inferred; especially as, from the nature of things, that only takes place where there may be a surrender in deed. Which, as before observed, can only be, in those cases where there may be a merger.
    The new patent refers to the old, and shews the intent to have been, that there should be no surrender. Consequently, none is to be implied. 1 Leon, 303. Besides, a patent must be actually cancelled, or it will retain its force. 5 Com. Dig. 280, 283; and, therefore, as it is not pretended that the original patents have ever been cancelled, they remain in full force. The consequence of which, is, that the several estates in the first tracts are not destroyed, and the whole turned into a joint-tenancy, as the other side would have it; but each proprietor remained sole tenant of his former tract, and was only joint-tenant with the others in the 1162 acres.
    But the act of 1748, c. 1, § 1, [5 Stat. Larg. 408,] is conclusive. For, by that, the lands could .not be transferred without a deed. This law as much applied to 465 the *'case of a grant from an individual to the King, as to grants from individual to individual, notwithstanding the maxim contended for on the other side; because the incapacity was in the subject himself to grant without the solemnities required by the law; and, therefore, the rule that the King was not bound, unless named in the statute, does not apply to the case. For, the objection is to the act of the subject, and not to that of the King.
    But, if there was no surrender, either express or implied, then the first grants remained as they were; and, consequently the demandant, as heir at law to his father, is entitled to the lands in controversy7.
    Wickham, on the same side. All deeds are to be construed according to the intent of the parties. The inclusive patent was merely intended as a confirmation of the old. For, it has the operative word confirm; and there is an express reference to the old patents. The last patent does not mention the surrender of the first, but on the contrary they are spoken of as subsisting. It appears from Viner’s Abr. that the better opinion is that the King cannot accept a surrender; and 1 Inst. 1, shews that the highest estate is a fee simple. Therefore, in the present instance, there was no higher estate in the King to surrender to. Shepherd, in the passages alluded to, was speaking of surrenders properly, so called; that is to say, of a lesser to a greater estate. The sum expressed, as the consideration of the grant, shews that the new land only was intended to be conveyed; and that the old was to stand under the former patents; because, the sum is exactly what ought to have been paid for 1162 acres; and the 4 Burr. 2211, shews it is to be a surrender or not, as the parties intended. As to the case of a cessavit, insisted on by Mr. Randolph, it does not apply. For, here is no forfeiture proved, and the Court will not presume it. On the contrary, the terms of the inclusive patent shew there was none.
    ^Randolph, in reply.
    The circumstances in the case, relative to the cessavit, existed here; for there might have been a forfeiture; and the patentees under the inclusive patent are estopped from recurring to the old patents. Litt. § 667. Re-granting the old tracts of land, shews the intention of the parties to consolidate the estates; or else the words of conveyance will have no operation. For, erase all the words relative to the former patents, and the last will be a substantive grant of the whole lands. Although an individual could not grant lands to an individual without deed, yet the King might accept a surrender; for he was not bound by the act, as he is not named in it. [The King v. Armagh, Stra. 516.]
    
      
      See monographic note on “Joint Tenants and Tenants in Common."
    
   PENDLETON, President,

delivered the resolution of the Court as follows:

The case now discharged of the question, whether the jury could find a special verdict in a writ of right, Shaw et al. v. Clements, ante, [429,] though lengthy in argument, appears to the Court to be a short and plain one.

Three patents on the 10th of June, 1740, were obtained by Thomas Jones, the father, and his two sons John the demandant and William the tenant, for 400 acres, so adjoining as to admit of being formed into one convenient tract. They were granted upon the usual condition of paying two shillings sterling a hundred annual quit-rent, and cultivating it according to law within three years; on failure of which, or the quit-rents being in arrear for three years, the grants were to be void.

In January, 1746, Thomas the father, obtained another patent for 400 acres adjoining thereto; which is the land in dispute, and which was granted upon the like conditions.

In September, 1755, these three patentees possessed of the 1600 acres of land; that is to say, the father of 800, and each son of 400, sue out what is called an inclusive patent for 2762 acres, by certain bounds comprehending the 1600 acres, (the 467 ^patents for which are recited,) and 1162 acres of new land; and this patent it is agreed conveyed an estate to the three grantees as joint-tenants of the whole lands, instead of the separate interest which each had before in his individual tract. This patent was upon the like condition respecting the whole, so as to become void if the quit-rents were in arrear for three years, or if it was not cultivated within three years from the date of the patent, excepting for so much as had been improved under the former patents.

The three join in conveyances of part of the new land to Glover and Hogg; of no other consequence than that, as to the new land at least, they understood their interest to be that of joint-tenants.

Between 1766 and 1770, Thomas the father died intestate; possessed of his .two patents for .800 acres, and John and William of their tracts, of 400 acres each; and John is found to be his heir at law : Who took possession of his .. father's*400 acres, granted in 1740, and suffered his brother William to possess the fattier’s other tract patented in 1746. Of the new lands nothing is said, as to the possession. ’ Of the other tracts the possession continued till the commencement of this suit, when John, the heir, claims the 400 acres from his brother William, insisting that his father was seised of the whole 800 acres under his old patents of a separate interest in fee,, which descended to him.

William insists that by the inclusive patent the whole 2762 acres were conveyed as one entire tract to the three grantees as joint-tenants, and upon the death of the father survived to the two sons; that the 800 acres originally the father’s, as well as the new land was to be divided, and was so in fact, by the allotment of one tract to the demandant, and the other being the 1 and in dispute to himself.

So, that the question between the parties is, whether as to the old lands the original separate title of each to his grant re-468 mained, notwithstanding the inclusive patent? Or, whether that title is merged by the acceptance of the inclusive patent, and changed into a joint-tenancy in the whole land?

Much learning was displayed from the old books concerning the necessary circumstances to make a surrender efficacious, which after all, probably proves, that that transaction; like all other compacts, depends upon the concurring will of the parties ; the one to make, and the other to accept the surrender. And in the case of the Crown, admitting that the King cannot accept a surrender in cases where, as under our laws, an estate in lands cannot pass but by deed, yet, neither that rule nor any of the Hnglish doctrines apply to the case of these patents; which depend upon our act of Assembly.

By that act, the patentee is the only actor and judge, whether he will entitle himself to the inclusive grant; he is not required to make either a surrender or conveyance to the Crown; nor had the King any agency in the transaction, except that his officers were imperatively to authenticate the new grant, when he should have entitled himself to it by the preliminary steps required. These steps have been taken; the new grant is obtained, having an effect favorable to the interest of the defendant: and la3Ting aside the objection, with respect to the surrender, we are to consider those arising out of the act of Assembly.

The first is, that the act is confined to one person, and cannot be extended to three; specially as the new land, though adjoining to one of the old tracts, does not in any part adjoin to the whole. In answer to which, we cannot discover a reason, why in the case of one person authorised to take such inclusive patent, three persons whose lands adjoin, concurring in will, may not unite their interest and take in common such an inclusive patent; and as to the other part of the objection, if it hád any weight, it does not apply in this instance; since the new lands sur469 round the four old tracts, so as *that some part of them adjoin the lands of each of the old tracts.

But, then the intention of the parties is truly said to be regarded on these occasions : and it was argued to have been impossible that they could intend to relinquish their separate and individual interest in the old lands; and make them a common stock with the new.

But why impossible, or even improbable? what did they lose or gain by this effect of the new patent? the only loss suggested, was that of their priority, in case the bounds should interfere with grants posterior to the old, but prior to the new grant: Which admits of two answers. Hirst, they might be so well satisfied with the bounds as to think that circumstance of .no consequence ; especially, as the new lands nearly surrounded the old: and Secondly, it has been adjudged, as far as I can recollect, and I believe by this Court, that in cases of interfering bounds upon inclusive patents, lapse patents, and patents for surplus lands, the priority shall refer to the date of the old patent, always recited in the new.

And what does the patentee gain by the new patent?

1st. A release of the forfeiture (if incurred under the former grants, either by the non-payment of quit-rents, or for want of cultivation;) being allowed three years to improve the old lands as well as the new: besides extending old improvements to save the new lands; the effect of the exception.

And when we view the relative situation of the three parties; there is nothing absurd or extraordinary in their having made this junction of their interests. Here was a father and two sons. The father in the course of nature would probably die first; and the interest devolve upon the two sons equally: Which the law of descents supposes would be his wish; and the situation 470 of the lands 'x'will conform to his having contemplated such effect of the new patent.

His old patent of 1740 is on one side; his son John next to him, William next, and his patent of 1746 adjoining William on the other side. Upon his death he seems to have supposed that John would take the tract adjoining him, and William the other; and this was the division which took place ■on his death ; when his son probably knew his intention, and a pious regard to that was more operative upon John, than his interest: although, at a remote period, the latter obtained the victory and produced the suit.

Another circumstance arising from a view of the survey is, that the new lands were so situated as to make a division of them nearly equal between the sons; as they join the parts of the old, to be divided, as before mentioned.

Upon the whole, we are unanimously of opinion, that the inclusive patent fixes the title of the grantees to be that of joint-tenants, subject to all the legal effects of such an interest; and that the partition seems to have been made, in fact, upon that ground. We are, therefore, for reversing the judgment; and entering a judgment for the tenant.

Judgment reversed.  