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Cloos v. Cloos

24 Abb. N. Cas. 219 Court N. Y. Supreme Court, Second Department; General Term; English

Delivered by Pratt, J.

Contents

Majority

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CLOOS v. CLOOS.
N. Y. Supreme Court, Second Department; General Term;
February, 1890.

Headnote

Husband and wife; deed to them, as joint tenants.] Deeds to husband and wife as co-grantees which recite either after the names of the grantees or in the habendum clause, that the property is conveyed to them “ as joint tenants and not as tenants in common ” will create a joint tenancy, and not a tenancy by the entirety, and one of them may subsequently maintain an action against the other for the partition of the land so acquired.[1]
Appeal by plaintiff from judgment dismissing the complaint.
The action was brought by Sophie Cloos against Bernard Cloos for the partition of real property.
The complaint alleged that the plaintiff and defendant are joint tenants of the premises, 241-243 Hudson avenue, in the city of Brooklyn, and demanded the usual judgment in partition. The answer denied that the plaintiff and defendant own and possess the property as joint tenants, and alleged that they do own and possess the same as tenants by the entirety, and that the same is not divisible except upon an amicable partition by deed.
The plaintiff put in evidence deed bearing date the . first day of August, 1884, made by Mary Driscoll, individually and as executrix, to Bernard Cloos and Sophia Cloos, as joint tenants and not as tenants in common, and also a deed dated April 23, 1887, between John Finley and Ann, his wife, to Bernard Cloos and Sophie Cloos, his wife, as joint tenants, habendum to the parties of the second part, their heirs and assigns forever, as joint tenants and not as tenants in common. In the first recited deed, the language of the habendum is to the parties of the second part, their
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heirs and assigns forever, but the language following their names in the descriptive part, was: as joint tenants and not as tenants in common. Defendant proved that the parties were husband and wife.
James Richards (Ooudert Brothers, attorneys) for appellant.
The sole question in this case is whether husband and wife can take lands with a limitation to them as joint tenants, and not as tenants in common, and hold the same by that tenure, or whether on account of the legal unity which.arises from the relation of husband and wife, they can only take as tenants by the entirety, for, if they can take as joint tenants, then the plaintiff, under section T532 of the Code, is entitled to a partition.
I. By section 3 of chapter 200 of the laws of 1848, as amended by chapter 375 of the laws of 1849, it is enacted : “ Any married female may take, by inheritance or by gift, grant, devise or bequest, from any person other than her husband, and hold for her sole and separate use, and convey and devise real and personal property, and any estate or interest therein, and the rents, issues and profits thereof, in the same manner and with the like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband nor be liable for his debts.” Beading this act now, with the omission of such words as are inapplicable to the present case, it will be as follows: Any married female may take by grant from any person other than her husband, and hold to her sole and separate use . . . real and personal property and any estate or interest therein . . . in the same manner and with like effect as if she were unmarried. This language would include the right to take and hold as joint tenant or tenant in common under a deed to her and another person. If that other person were her husband, and the limitation was to them and their heirs and assigns, the common law rule would no doubt prevail, and they would take by the entirety, but if the limitation was to them expressly as joint‘tenants or as tenants in
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common, then the parties would by force of the statute so take, and the wife would have such estate or interest as any other joint tenant has. The common law rule of construction of a deed made to a husband and wife and their heirs, that it conveys the entirety, has' very properly been held not to be abolished by the above act, but the statute enables a wife by apt words to take any such estate as she may agree with the vendor to take, and this agrees with what Stewart on Husband and Wife (§ 310) says: “In case of devises and bequests to husband and wife together,, though it has been said that they can only take as tenants by the entirety, the prevailing rule is that if the instrument expressly so provides they may take as joint tenants or as-tenants in common. The Married Woman’s Separate Property acts, even when they do not destroy tenancies by entirety, give the wife the capacity to take as a separate^ person.
II. The Common Law Bules on the Subject.—In 2 Blackstone’s Commentaries, p. 182, we read, “ In joint tenancy the parties are seized per my et per tout, by the half or moiety, and by all, that is, each of them has the-entire possession as well of every parcel as of the whole. They have not, one of them, a seisin of one-half or moiety,, and the other of the' other moiety; neither can one be exclusively seized of one acre and his companion of the other, but each has an undivided moiety of the whole, and not the whole of an undivided moiety.” The author then proceeds to state that when an estate in fee is given to a husband and wife, they being considered as one person in law. cannot take by moieties and both are seized of the entirety per tout et non per my I’ -Sharswood in his note-herein says, “ that where an estate is conveyed to a man and a woman who are not married, together, and who after-wards intermarry, as they took originally by moieties, they will continue to hold by moieties after the marriage.”" There is nothing, therefore, in the relation of husband and wife which prevents them from being tenants in common.
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There are great opinions in-favor of the position that husband and wife may by express words be made tenants in common, by gift to them during coverture (citing Preston on Abstr. ; Preston on Estates; 4 Kent’s Comm., 363; 1 Reed’s Bl., 470). In Coke on Litt. (vol. II, ch. 25—of estate in joint tenancy, side paging 740, 187b) “but if an estate be made to a man and woman and their heirs before marriage, and after they marry the husband and wife have moieties between them which is implied in these words of •our author, 1 husband and wife,’ ”... but certain it is that if feoffment were made before the statute of 27 Hen. VIII., óf uses, to the use of a man and a woman, and their heirs, and they intermarry, and then the statute is made, if the husband alien it, it is good for a moiety, for the statute ■executes the possession according to such quality, manner, form and condition as they had in the use, so as though it vest during the coverture, yet the Act of Parliament executes •several moieties in them, seeing they had several moieties in the use ... A man makes a lease to A and to a baron and feme, namely, to A for life, to the husband in tail, and to the feme for years. In this case, it is said that each of them hath a third part in respect to the severalty of their ■estates. Coming to more modern text books, we find W ashburn on Real Property (Book I, ch. 13, sec. 4) : It is always competent,however,to make husband and wife tenants in common by proper words in the deed or devise by which they take, indicating such intention. In the case of McDermott v. French ( 15 N. J. Eq., 78 at p. 80) the chancellor says: So it seems that a husband and wife may by ■express words be made tenants in common by gift to them •during coverture (4 Kent Comm. 363 ; 1 Prest, on Est., 132; 2 Bl. Comm. 182—Sharwood’s Notes. The bill .alleges that the husband and wife were seized as tenants in common by virtue of a conveyance made to them. Even, therefore, if it appears by the bill that the conveyance was made during coverture, that fact is not absolutely inconsistent with the creation of a tenancy in common; as
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there is a direct averment that the conveyance created a tenancy in common, it must be assumed that apt words were used in the deed for that purpose. See Gerard on Titles, p. 313; Note Tiedman’s Real Property (1885) § 245. Kent (in IV. Comm. 363), says : It is said, however, to be now understood that husband and wife may by express words, be made tenants in common by gift to them during coverture. Preston on Estates (p. 132), says: In point of fact and agreeable to natural reason, free from artificial deductions, a husband and wife are distinct individual persons, and accordingly when lands are granted to them as tenants in common, thereby treating them without any respect to their social union, they will hold by moieties as other distinct and individual persons would do (citing 1 Inst., 187b, side paging). And the same author, in his treatise on Abstracts (Vol. II., p. 41) says: And even a husband and wife may by express terms, at least so the law is understood, be made tenants in common by gift to them during coverture.
III. Decisions of the Coubt of Appeals m this State. —The case of Moore v. Moore ( 47 N. Y. 467 ), decided that a wife owning real estate as a tenant in common with her husband, can maintain an action of partition against him. The facts were as follows: On or before June 5, 1864, the defendant, the husband, was the owner in fee of the real estate in question, and on that day he, with his wife, executed to their son, John K. Moore, a deed, purporting to convey the equal undivided half of such premises, and on the same day the said John K. Moore executed to the plaintiff a deed purporting to convey to her the said equal and undivided half part of said premises; the wife brought suit against her husband for partition. The court in its opinion, in which all concur, says : The deeds being operative (a question had arisen as to their being properly stamped) on the execution of them to the plaintiff, she being a married woman, held this equal undivided half part as her separate estate or a part thereof. In relation to it the plaint
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iff can bring an action in the same manner as if she were a femme sole. There is, therefore, no inherent disability in a wife to hold land in common with her husband. The casé of Meeker v. Wright ( 76 N. Y. 262 ), so far as it held that a deed to husband and wife and their heirs and assigns created a tenancy in common since the Married Woman’s Act of 1860, has been disapproved in the case of Bertels v. Nunan ( 92 N. Y. 152 ), the latter case holding that where property was conveyed to C. D. and H. D., his wife, their heirs and assigns, the grantees took as tenants by the entirety. We remark that the head note of that case is misleading, as it says, under a conveyance to a husband and wife jointly, they take, etc. The statement of facts by the court shows that the habendum was as above shown.
IV. By chapter 472 of the Laws of 1880, entitled an act in relation to the partition of lands held by husband and wife as joint tenants, tenants in common or tenants by entirety, it is enacted, that whenever husband and wife shall hold any lands or tenements as tenants in common, joint tenants, or as tenants by entirety, they may make partition or division between themselves, and such partition or division duly executed under their hands and seals shall be valid and effectual, and when so expressed in the instrument of partition or division, such instrument shall bar the right of dower, of the wife in and to the lands and tenements partitioned or divided to the husband. This act has two aspects. It shows that there is no inherent disability, as we have abov.e said, in holding, as in the case now in question, as joint tenants, the conveyances in question being made since the passage of the above act. It also permits a voluntary partition between them, somewhat analogous to the act which authorized husband and wife to convey directly to each other, but it did not take away the right which all joint tenants under the Code (§ 1532) have to bring an action for partition. In the case of Zorntlein v. Bram (100 N. Y. p. 12), where property was conveyed to Jacob Bram, and Beda his wife, in the
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year 1878, and by deed dated September 23, 1881, said Beda executed a deed purporting to convey an undivided half to the plaintiff, it was held that as Bram and wife took as tenants by the entirety, neither one could convey without the other separately to a third party, and that the Act of 1880, Chapter 472, just cited, which allowed husband and wife to make a division between themselves of lands thus held, was not regarded as abrogating the former rule, but at all events the court says, it could not affect the title in question in this action, as the conveyance to Jacob Bram and wife was made before the passage of that act, namely, in 1878. Abbott in his New York Digest, 1886, p. 183, in a note on this case says : " In the Pennsylvania case ( 26 Penn. St. 400 ), it is said, and this is the basis of the decision, that during coverture husband and wife cannot hold or enjoy any other estate, yet this is manifestly incorrect, for, if they are tenants in common or even joint tenants before marriage, then coverture does not change the nature of the estate, and they still continue to hold in the same way (citing 15 N. J. Eq., 89 , supra, and Moore v. Moore, supra. ” The Act of 1880 should be construed as a supplement to the enabling act relating to the estates of married women, enabling them, if not before, to take property in any manner that they pleased by using apt words for the purpose. One word should be said with regard to the conveyance to Sophie Oloos and Bernard Oloos, which we put in evidence, and in which the habendum docs not occur in the usual place, but immediately after the names of the party of the second part, and it is this: that as to its construction we find in the Revised Statutes this provision: “ In the construction of every instrument creating or conveying, or authorizing the creation or conveyance of any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties so far as such intent can be collected from the whole instrument and is consistent with the rules of law (2 R. S. side paging 748, § 2).
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The plaintiff is, therefore, we submit, entitled to a judgment for partition in the usual form.
Moffett do JRramer, for respondent.
The only question in this case, is, the nature of the tenancy held by the parties to this action. By the common law a married woman and her husband constituted but one person in law; and where land was conveyed or devised to them together they did not take by moieties. Both were seized of the entirety, and not as joint tenants or tenants in common, and the survivor took the whole, and the deed of one without the other (if living) was inoperative. So even if the habendum clause was express that they should hold as joint tenants, the above common law rule would still prevail. This is the law as to joint ownership of husband and wife, even since the enactment of the various married woman’s acts, so called (Gerard Titles to R. Est. 66 and 67; Bertles v. Nunan, 92 N. Y. 152 ; Dias v. Glover, 1 Hoffm. Ch. 71, and cases cited; Zorntlein v. Bram, 100 N. Y. 12 ). Common law incidents of marriage are swept away only by express enactments. In the case of Bertles v. Nunan, above cited, and that is the latest and controlling decision upon this question, it was held that the common law rule as to the effect of a conveyance to husband and wife has not been abrogated. In Dias v. Glover, 1 Hoffm. Ch. 71, and cases there cited, it was held that even if the habendum clause was express that they should hold as joint tenants, the above common law rule prevailed, and the estate was a tenancy by the entirety. The common law rule was never questioned in this State by any court until the decision in the case of Meeker v. Wright, 76 N. Y. 262 . In that case the learned Judge reached the conclusion that the common law rule governing conveyances to husband and wife had been abrogated by modern legislation. That decision for awhile unsettled the question, but in 1883, the case of Bertles v. Nunan, 92 N. Y. 152 , finally set at rest the question, overruling Feely v. Buckley, 28 Hun, 451 , and held the law to
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i>e as above stated. Now, if the common law rule has never been abrogated in the case of a conveyance which does not in express language state what the estate is to be, what is there to change the rule in the case of a conveyance which •expresses in words and purports to create a “ joint tenancy ?” The Act of 1880, ch. 472, does not in any way apply to this case. Where a joint tenancy, a tenancy in common, or .a tenancy by the entirety exists, husband and wife may, with the consent of each other, partition by deed. That is Ml there is to that statute. That enactment does not create a joint or other tenancy. It merely authorizes, when they exist, the right of the parties to partition between themselves by deed. In a recent case (Oct. 1888) tried in the city court of Brooklyn, exactly parallel with the case at bar, Joost v. Frey, Judge Osborn wrote the following opinion : “ I am of the opinion that the deed of Rohlfs to Christian Frey and Louise Frey, his wife, constitutes them tenants by the entirety of the premises thereby conveyed, notwithstanding the habendum clause was to them as joint tenants.” We submit that a conveyance to husband and wife jointly, even where a contrary estate is attempted to be established by express words, creates a tenancy by the entirety. The judgment should be affirmed.

The common law rule that where lands are conveyed to husband and wife jointly they hold as tenants by the entirety, still prevails in this State and has not been abrogated by the various acts of the Legislature with respect to married women (Bertles v. Nunan, 92 N. Y. 152 ; Zorntlein v. Bram, 100 Id. 12).

That husband and wife may hold lands as joint tenants or as tenants in common, would seem to be recognized by Chap. 472, Laws 1880. When they so hold, an action in partition will lie at the suit of either against the other (Moore v. Moore, 47 N. Y. 467 ).

The only question in this case is, whether the two deeds

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which conveyed the premises in question, created a joint tenancy by the entirety as to those lands.

The deed of August 1, 1884, is between Mary Driscoll, as grantor, and Bernard Oloos and Sophie Oloos, as grantees, “ as joint tenants and not as tenants in common.” It conveys to them “ their heirs and assigns forever.”

The deed of April 23, 1887, is between John Farley, as grantor, and Bernard Oloos and Sophie Oloos, as grantees, “ as joint tenants,” and conveys to them “ their heirs and assigns forever.” In this deed the habendum clause is to the grantees, “ their heirs and assigns forever, as joint tenants and not as tenants in common.” It seems very clearly to have been the intention of the parties to create a joint tenancy. We think such a tenancy was created unless it is impossible for husband and wife to take other than by the entirety where they take under one deed. We do not understand that such a disability exists where apt words are used in the conveyance (Hicks v. Cochran, 4 Edw. Ch. 107 ; McDermott v. French, 15 N. J. Eq. 78 ). To the same effect are Washbiorri on Real Property, Vol. I., chap. 13, § 4; Kent's Com. 363, and Preston on Estates, 132.

In Bertels v. Hunan, the conveyance was to husband and wife, their heirs and assigns, without designating any particular as to each. It simply gave them the fee, and the court of appeals held that they took as tenants by the entirety, under the common law. It does not seem to us that the court intended to decide, or in fact did decide, in that case that husband and wife could not take by deed either as joint tenants, or as tenants in common, where proper words were used.

We are therefore of opinion that the court at Special Term erred in dismissing the complaint.

The judgment appealed from should be reversed and a new trial be ordered with costs to abide the event.

Barnard, P. J., concurred. •

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Note on Tenancies by the Entirety.

The simplest form of post nuptial settlement next after the conveyance, through a third person to the wife, of an entire fee, is a conveyance to both creating the old common law tenancy by the entirety. This estate was for a long time so little used by conveyancers in this country that it became, in the opinion of many of the profession, obsolete after the operation of the married women’s act. But considerable classes of industrious and thrifty people have found' it so well suited to their needs that it would have been a misfortune had the courts felt bound to sustain the opinion that it was abolished. My readers will doubtless find it advantageous to notice the legal results of this estate under our existing system of law.

It will be seen that the simplest form of creating it is the clearest, a deed to A. B., and M. B., his wife, their heirs and assigns forever.

The main features of the rights which it establishes are that the husband has a marital control for life; and the life ■estate in him is not beyond the reach of his creditors ; and on the death of either the entire fee vests in the survivor.

Notes of Oases.

1. At common law husband and wife cannot tahe as joint tenants.] McCurdy v. Canning, 64 Penn. St. 39 . Ejectment. Deed to husband ■and wife (the defendants). Habendum, “ to have and to hold the said premises as tenants in common and not as joint tenants, unto the said Robert Canning and the said Eliza Canning, theirs heirs and assigns forever.” A judgment was subsequently entered, and his interest in the premises sold.— Held, that the husband and wife took an estate by entireties. They could not take by moities, by reason of their legal unity; both are seized per tout et non per my. Consequently neither can dispose of any part without consent of the other; if the husband •might convey or mortgage the estate for the period of his own life, necessarily it would follow that it could be taken under execution, which cannot be done. Also, the same words which would make two other persons joint tenants, will make husband and wife tenants by the entirety. [But under the married woman’s act they can take as tenants. in common by express words of conveyance.]

2. Tenancy in common may be created by express provision.] Hicks v. Cochrane, 4 Edw. Ch. 107 . Bill to establish will. Deed to Henry Pritchard and Mariana Pritchard “and to their heirs and assigns, the one equal undivided half part of each of all that certain messuage, etc. —Habendum, in fee on the following conditions: 1. That the said Mariana should have the government and receive all the rents and profits during her life. 2. That she should not at any time convey her half with

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out consent of Henry. 3. That she should have sole power to will her half. 4. Either dying intestate, the whole to go to the survivor.—Held, that although the effect of a deed to husband and wife is to let the entirety go to the survivor, yet it may by express words, create a tenancy in common. That by the.terms of the deed in question the-parties took as tenants in common, as if the words, “ to hold as tenants' in common,” had been used.

3. Statute making tenancies presumptively common does not apply to‘ husband and wife.] Den v. Hardenbergh, 5 Halst. N. J. 42. Ejectment. Deed to James Hardenbergh and Eliza his wife. Habendum, to-their own proper use, their heirs and assigns forever.—Held, that the-conveyance did not, strictly speaking, create the husband and wife joint tenants, but created an estate of a peculiar nature of which they were-seized, not per my el per tout (as joint tenants would be) but solely and simply per tout. That a statute enacting “ that no estate shall be considered a joint tenancy, except that it be expressly set forth in the grant, or devise that it is intended to be an estate in joint tenancy, and not an estate of tenancy in common,” did not apply to an estate granted to husband and wife.

For the similar provision in New York, see 1 R. S. 727.

4. The tenancy is not abrogated by the married women's act.] Bertles v. Numan, 12 Abb. N. C. 282 ; s. c., 92 N. Y. 152 . Deed to. “ Cornelius Day and Hannah Day his wife, their heirs and assigns.” Husband died leaving wife surviving. The latter died intestate. Plaintiff as administrator contracted to sell to defendant, who refused, to complete purchase, claiming that wife was seized only of a half interest. Case submitted.—Held, that by the common law, when land was-conveyed to husband and wife, they did not take as tenants in common, nor as joint tenants, but each became seized of the entirety, per tout et non per my and upon the death of either, the whole survived the other. That this common law doctrine has not been abrogated by the statutory provisions, enabling a wife to acquire and hold a separate-estate, and to sell and convey the same.

5. —it is not a joint tenancy.] Babbit v. Scroggin, 1 Duv. Ky. 272. Bill to quiet title. Plaintiffs claimed as heirs of one Mary Parker, to whom and her husband a conveyance had been made. Said Mary survived her husband.—Held, that the husband and wife took by entireties, and that the wife having survived, plaintiffs were entitled to the land by descent. That the statute of 1796; abolishing survivor-ship among joint tenants, did not apply to tenants by entirety, as the two tenancies were different and .distinct; joint tenants holding per my etper tout, tenants by the entirety holding per tout et non per my.

6. Terms of instrument which may create it.] Torrey v. Torrey, 14 N. Y. 430 . Ejectment. Defendant leased to Daniel Torrey and

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plaintiff his wife, during their natural lives and the longest liver of them.—Held, that the husband and wife did not take as joint tenants, but as tenants by the entirety. They cannot take by moieties. Each is seized of the whole; the wife having survived her husband took by force of the original conveyance.

7. Rogers v. Grider, 1 Dana, (Ky.) 242. Conveyance to husband and wife. Land subsequently sold under executions against husband, and plaintiff became purchaser. The wife filed a bill for a release to her of the whole of the land.—Held, that the conveyance to husband and wife did not make them joint tenants, but tenants by entire-ties. One of the incidents of joint tenancy was the right of one tenant to alienate his interest, whereas neither husband or wife can make any alienation of the estate conveyed to them during coverture. The estate of joint tenants is an unit made up of divisible parts ; the estate by entirety is an unit, not made up of any divisible parts, but is an indivisible whole, and on the death of either husband or wife, the survivor takes no new estate or interest, and nothing but that was in him or her before. That the release should therefore be decreed.

8. Doe v. Garrison, 1 Dana, 35 . Ejectment. It was contended by defendant that upon the death of her father, a moiety of five hundred acres conveyed to him and his wife, descended to the children, and. that an entry of defendant, one of the children, should be presumed to be by virtue of her title and not merely by permission of her mother.— Held, that the moiety did not so descend. That an estate conveyed to husband and wife is not a joint tenancy. Joint tenants take by moieties, and are each siezed of an undivided moiety of the whole— per my el per tout. But husband and wife, being legally but one person, there can be no moieties between them. Each has the entirety, and they are seized per tout and not per my. Upon the death of the husband, the estate becomes the wife’s, absolutely.

9. Doe v. Wilson, 4 B. & A. (Evg.) 303. Ejectment. Surrender of copyhold to J. M., and E., his wife, for and during the term and terms of their natural lives, and the life of the longer liver of them, and from and after the decease of the survivor of them, to the right heirs of the survivor of them forever.”—Held, that the husband and wife took an estate for their joint lives and the life of the survivor, with a contingent remainder in fee to the survivor.

10. Bricker v. Whately, 1 Vern. 233. Will bequeathed the rest and residue of testator’s property to Stephen Whately and Hester his wife, equally to be divided amongst them. It was urged that husband and wife took as tenants in common, by reason of the words “ equally to be divided between them.”—Held, that husband and wife took by entireties, it being proved that the wife only was of kin to the testator.

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11. Barber v. Harris, 15 Wend. 615 . Ejectment. Conveyance to husband and wife and to six of their children, (having them,) and to such other children of the marriage as might subsequently be born. —Held, that the deed created a tenancy in common between the husband and wife, and the children ; but as between the husband and the wife, an estate by the entireties was created. Each was seized pel• tout et non per my and being but one person there could be no moiety nor separate estate between them. Neither could alien the same without the consent of the other. But the husband having the control during his life, he might convey or mortgage it during that period.

12. Edwards v. Beall, 75 Ind. 401 . Bill to set aside mistake and for partition, etc. Conveyance of land to a woman and her husband, tp be held by her as her own property, the husband having the possession during his lifetime and possession to return to her if she survive him. —Held, that by the terms of the deed, a joint tenancy by entireties was not vested in husband and wife, but an estate in fee vested in the wife subject to his life estate..

13. Chandler v. Moore, 37 Ind. 391 . Proceedings to enjoin sale under forclosure. Conveyance to Eldridge G. Mayhew and Sarah Mayhew [who were husband and wife]. The husband mortgaged the property by his separate deed.—Held, that in order to the creation of an estate by entirety, it is not necessary that husband and wife should be named as such in the deed. That the same form of words, which, if the grantees were unmarried, would have constituted them joint tenants, will, they being husband and wife, make them tenants by entireties. That the marked difference between the two estates is, that in a joint tenancy, either may convey to a stranger; but in tenancies by the entirety, neither can convey so as to affect their joint use of the property. They are seized per tout and not per my.

14. Farmers’, etc. Bank v. Gregory, 49 Barb. 155 . Actions to set aside conveyances. Defendant conveyed in trust to Humphrey to convey to said defendant and his wife as joint tenants.—Held, that the statutes creating a separate estate in married women, had no effect upon real estate conveyed to husband and wife jointly. That husband and wife held such estate, not as joint tenants, but as tenants by entirety, and the same mode of conveyance which would make two other persons joint tenants will make the husband and wife tenants of the entirety.

15. Green v. King, 2 Wm. Bl. 1211. Ejectment. John Beauchamp' surrendered a copyhold “to the use of Fitzwalter and Elizabeth, his wife, and the longer liver of them, and after .the death of the longer liver, to their right heirs.” The wife survived and devised to plaintiff.— ■Held, that the husband took by entireties, that is, per tout and not per my. That such an estate was distinguished from a joint tenancy, in that joint tenants took by moieties. In a joint tenancy the tenants

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might sever their moieties, but in a tenancy by entirety neither the husband nor wife could alien, each being seized of the whole.

16. Termination by divorce.] Lash v. Lash, 58 Ind. 526 . Husband and wife held an estate as tenants by the entirety and the wife obtained an absolute divorce.—Held, that the divorce worked a discontinuance of the estate by the entirety, and the husband and wife thereupon became joint tenants and the wife might have partition.

17. Conveyance by husband who has abandoned his wife.] O’Connor v. McMahon, 64 Hun, 66 . The husband cannot do any act which will deprive the wife of her rights under L. 1860, c. 90, § l,.in lands held by the entirety, and the reasonable support which the same may bring to her. The husband, by virtue of his marital rights, has the power to receive and dispense the avails of the land for the common support of himself, his wife and their children. In the due and lawful management thereof he is free from the interference of his wife. This dominating right springs from the relation he bears to her as husband under the common-law rule. When, however, he absents himself from the possession and control of the property and leaves his wife in the sole possession and control, he can do no act which will deprive her of the enjoyment which the grant was intended to bring to her. A husband, therefore, who has abandoned his wife and left her in possession, cannot, by attempting to convey the premises, during her life-time, effectually vest his grantee with any right as against the wife, to the use and possession of the premises.

18. — grant to husband, wife and third person.] Back v. Andrew, 2 Vern. 120. Bill to discover title. Purchase made of copyhold estate by John Andrew, and surrender taken to John Andrew and his wife, and Elizabeth his daughter and their heirs. Plaintiff purchased estate of Andrew. —Held, that husband and wife took a moiety by entireties, and the daughter the other moiety. That the husband could not alien the moiety which he and his wife took, so as to bind the wife, and that the other moiety was completely vested in the daughter.

19. Statute creating succession by entireties. Gillan v. Dixon, 65 Pa. St. 395 . Assumpsit to recover certain notes. A child died intestate, unmarried, without issue.—Held, that the personal estate vested in her father and mother absolutely under Act 1883, § 3 (Intestates). That owing to their legal unity the husband and wife did not stand as ordinary joint tenants to each other, but were seized by entireties and not per my et per tout.

20. Survivorship.] Jackson v. Stevens, 16 Johns. Ch. 109 . Ejectment. Mary Stevens, widow of Samuel Stevens, took, under the will of the latter, one-fourth of a farm. Mary married Blanchard, and together they conveyed the one-fourth part to Buggies, and he reconveyed to Blanchard and wife. Blanchard survived his wife and claimed

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the whole of the-estate.—Held, that husband and wife took, not as joint tenants nor as tenants in common, but by entirety. That the statute enacting that persons shall not take as joint tenants unless expressly stated in the conveyance, did not apply to tenants by entirety. That, therefore, the husband took the whole by survivorship.

21. Husband's power; lease by husband, and action thereon. Topping v. Sadler, 5 Jones L. (N. C.) 357. Ejectment. Deed to husband and wife. Defendant asked the court to charge the jury that plaintiff should have declared on a joint demise by him and his wife and that he could not recover on his own demise alone. Refused.—Held, on appeal that the fact that the husband has also an estate jointly with the wife, cannot put him in a worse condition than if he had no estate except such as he acquired jure marili, for he has something more. Though there is a fifth unity, to wit: that of person, he may make a lease for years which will be valid during coverture; consequently he may maintain ejectment on his own demise.

22. Mortgage ends with husband's life.] Rogers v. Benson, 5 Johns. Ch. 431 . Bill to have claim paid out of proceeds of mortgage. Deed to William Houstoh and Mary, his wife, of one equal undivided fifth part of an estate. Mary survived her husband, and, the property descended to her heirs. Plaintiff’s bill proceeded upon a mortgage made by the husband, but not joined in by wife.—Held, that husband and wife took by entireties ; each.heldper tout and the husband could make no conveyance without the consent of the wife. That the same words of conveyance which will make two other persons joint tenants, ■ will make the husband and wife tenants by the entirety.

23. Husband cannot convey wife's interest.] Doe v. Parratt, 5 Tenn. Rep. 652 . Ejectment. Copyhold estate devised to husband and wife in fee. Husband conveyed, wife not joining.—Held, that the devise created an estate by the entirety. That though a devise to A. and B., who are strangers to each other, creates a joint tenancy, and the conveyance by one severs the joint tenancy and passes a moiety, yet where the devise is to the husband and wife, they take by entireties, and not by moieties ; and the husband alone cannot by his own conveyance, without joining his wife, divest the estate of his wife.

24. Eights of creditors.] Washburn v. Burns, 34 N. J. L. 18 . Action against defendants, husband and wife; on a mechanics’ lien for the debt ■ of the husband. The property upon which the lien was filed was held by the husband and wife as tenants by entirety.—Held, that during the period of their joint lives, the wife could have no interest in the estate. It is then to be considered the husband’s interest alone, and as such is subject to his debts contracted by him.

25. Bevins v. Cline, 21 Ind. 37 . Action by administrator of deceased wife on a note given for purchase of property previously

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owned by her and her husband and conveyed by joint deeds. Defencethat the interest of the husband was sold on execution by the entirety. —Held, that in a tenancy by entirety, each is seized per tout ei non per my ; neither can take by moieties, and each as well as both are-entitled to the whole. Neither can sever the estate by his or her own act as in a case of joint tenancy. Nor would it seem could the separate interest of either be sold on execution, for, in fact, there is no separate-interest.

26. Debt.] Beach v. Hollister, 3 Hun, 519 . Ejectment to recover property purchased by plaintiff under an execution issued against one Owen, to whom and his wife, the property had been previously conveyed. —Held, that as the estate had been conveyed to husband and wife, they were not properly joint tenants, nor tenants in common. They could not take by moieties, but are both seized of the entirety. That the interest of the husband in the property was subject to sale on execution ; because what a man can sell himself, can on execution be legally sold for his debts; the husband has the absolute control of the estate by entirety during his life, and may mortgage, lease, or convey his interest. As to whether his contingent interest dependent upon his-surviving his wife may be sold, query.

27. Bennett v. Child, 19 Wisc. 362. [McCurdy v. Canning, 64 Penn St., contra.] Action to restrain sheriff from deeding land sold under execution. Plaintiffs, as husband and wife, purchased premises jointly, and took a deed running to them both. Nearly one half of the purchase money was paid out of the wife’s separate estate. The land was subsequently sold on execution, for a debt contracted by the husband, subsequent to the joint purchase.—Held, that while the husband cannot alienate an estate held by him and his wife by the entire-ties, as against the wife surviving him, yet he has an absolute right to dispose of his life interest. Haying such power of disposition, his-creditors may attack his life interest under execution.

28. Ketchum v. Walsworth, 5 Wisc. 95. Application by plaintiff as administrator of husband to sell lands held by husband and wife. The lands in controversy were entered in the land office in the joint names of husband and wife,, with money the separate property and estate of wife. Husband died intestate, leaving debts.—Held, where an estate is granted to husband and wife jointly, they take by the entireties; and neither can dispose of the same without the consent of the other. The words of conveyance which would make two other persons joint tenants, will make husband and wife tenants by the entirety. That wdiere such an estate is purchased with the separate property of the wife, equity will not interfere to subject the estate so-purchased to the payment of the husband’s debts, contracted before marriage.

Cases cited