Meeker v. Wright

[After stating the facts.]—The deed from Clarissa Smith to Samuel Daily and Cordelia Daily was for a consideration, found by the trial court to be good and valuable, stated in the deed to have been $1,000, paid by the grantees, and which, as the undisputed evidence shows, moved from each. The deed, as the trial court found, and as appears from the instrument itself, contains no statement as to the manner in which the grantees should hold the lands described in it. Upon this state of facts it is plain

But the learned court also finds as a fact, that at the time of the execution of the several conveyances, and the bond and mortgage above referred to, Samuel Daily and Cordelia Daily were husband and wife, and therefore concludes that the statute has no application and that they became tenants of the entirety of the premises conveyed to them by Clarissa Smith; that for the same reason the deed from Samuel to Cordelia was void at law, and therefore that the mortgage, so far as its consideration came from the real estate, is void. This view was sustained by the general term, but is, I think, erroneous.

At the time of the execution of the deed from Clarissa Smith to Samuel Daily and Cordelia Daily, the statutes of 1848 and 1849, for the more effectual protection of the property of married women, and those of subsequent years—1860-1862—concerning the rights and liabilities of husband and wife, were in force.

By that of 1858, chapter 200, as amended in 1849, chapter 375, any married female may take by grant,

In the case of Matteson v. New York Central R. R. Company ( 62 Barb. 373 ), Judge Mulliit, delivering the opinion of the general term, says, “The husband and the wife are for all legal purposes no longer one person,” and the construction which led to this general observation has been applied in so many cases, that the conclusion arrived at in the case before us may be deemed well supported by authority.

In Power v. Lester ( 17 How. Pr. 413 ; S. C. on app., 23 N. Y. 529 ), the case disclosed a bond secured by mortgage upon certain real estate given by an unmarried man to a single woman. The parties after-wards became husband and wife, and together executed a mortgage to one Lester upon the same and other

In Beach v. Hollister ( 3 Hun, 519 ), the same question was before the court and very summarily disposed of by a divided court, the majority, by Gilbert, J., saying, “ Those statutes operate only upon property which is exclusively the wife’s, and were not intended! to destroy the legal unity of husband and wife, or to change the rule of the common law governing the effect of conveyances to them jointly,” and citing the cases of Goelet v. Gori, Farmers’ Bank v. Gregory, above referred to, and Freeman v. Barker (3 T. & C. 574). This case was decided by the supreme court of the third department, on the strength of Goelet v. Gori, and Farmers’ and Mechanics’ National Bank v. Gregory, the court saying, “ The question now raised must be considered res adjudieataH It will be seen, then, that, so far as authority goes, it all rests upon the special term case of Goelet v. Gori. I have been able to find no reason for its support.

If this view is correct, then, by the deed from Clarissa Smith to Cordelia Daily and Samuel Daily, each became tenant in common with the other, and as such each had a valuable interest which could be conveyed, and therefore the deed from Samuel Daily to Cordelia Daily did convey an estate or interest of value, and supports, as by a good and valuable consideration, the mortgage, unless by the same rule of the common law the deed is wholly invalid by reason of the marital relation existing between the parties. It may be conceded that this would be so in law where neither hus

The transaction, then, which resulted in the execution of the bond and mortgage by the respondent is to be regarded as valid within plain principles of equity. These principles have, indeed, been recognized and applied by the trial court in this case, for the defendant sought not only to defeat a foreclosure of the mortgage, but to recover back the money paid by her upon it. She failed in this. The same instrument by which Samuel Daily undertook to convey the land, conveyed also personal property. The mortgage secured the price of both, and each as much as the other formed the consideration for its execution. The trial court and the general term hold the conveyance operative and the mortgagé valid, so far as the personal

It was also found by the trial court “ That the consideration of the mortgage was in part the price of

It is, however, objected by the respondent’s counsel, that the acknowledgment of the mortgage by Mrs. Daily is insufficient, because the certificate' does not show that it was taken separate and apart from her husband and executed without fear or control, and the general term having come to the conclusion on other grounds that the complaint should be dismissed, decline to pass upon that objection, but whatever its merits may be, it is not available to the defendant, for the complaint alleges that the defendant did “duly acknowledge and deliver the mortgage,” and this the defendant not only does not deny but expressly admits by her answer. The allegation must therefore be taken as true.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Raballo and Miller, JJ., concurred.

NOTE ON THE EFFECT OF THE MABBIED WOMEN’S ACTS, ON TENANCY OF HUSBAND AND WIFE BY ENTIRETY.

The following cases indicate the line of decision in other States, on this question.

Hoffman v. Stigers, 28 Iowa, 302 (Partition, 1869, opinion by Wright, J.). In 1863, a decree of partition gave to a wife and her husband certain land. The next year the wife died, leaving the husband and their children. The husband, in 1867, conveyed the entire premises by quit-claim to the defendant in this suit. The plaintiffs, the children and heirs of the wife, claimed by inheritance the undivided portion. The defendant insisted that the husband and wife took as tenants by- entirety, and that, upon the wife’s death, her title was extinguished. Held, that under the law of the State by which the wife can take the title to real property in her own name, and by gift or grant from the husband, even without the intervention of a trustee, and may convey her interest in real estate in the same mañuelas other persons—joint tenancies and in entirety are not favored, and conveyances to two or more in their own right create a tenancy in common, unless a contrary intent is expressed.

The judge says: “In construing a statute, each day but serves to demonstrate the necessity of looking at its very words or language. This rule neglected, and we might be led to think that the case of Jackson ex dem. v. Stevens ( 16 Johns. 110 ), and others of similar import cited by appellees [plaintiffs], were in conflict with the above position. Their statute was, that no estate in joint tenancy shall be claimed under any grant, &c., unless the premises therein mentioned shall be declared to pass,'not a tenancy in common, but a joint tenancy. And as a conveyance to husband and wife did not (and never did), invest them with an estate in joint tenancy, it was held most properly that the statute did not extend to such a case. Ouistatute, however, is very differently worded. It is, that a conveyance to two or more in their own right, creates a tenancy in common, unless the contrary is expressed. This language is affirmative, declaring what the conveyance does or shall create. That of New York is negative, and speaks of what it shall not create or pass. If in this State the wife is one of ‘ two or more persons, ’ the husband bei ng the other, then the conveyance to these creates a tenancy in common, nothing to the contrary being expressed. They are not indivisible, in the sense and

Cooper v. Cooper, 76 Ill. 57 (Partition, 1875, opinion by Walker, Ch. J.). Land was conveyed in 1865 to a husband and wife. After death of the husband this suit was brought to partition and to assign the widow’s dower. Held, that since the adoption of the “married woman’s law ” in 1861 (which authorized a married woman to acquire, during coverture, real and personal estate as her sole and separate property, under her sole control, and to be held, owned, possessed and enjoyed by her, the same as though she was sole and unmarried, and that it shall not be subject to the disposal, control, or interference of her husband, and shall be exempt from execution or attachment for the debts of her husband), the reason for the rule which holds that a conveyance to husband and wife makes them tenants by the entirety, has ceased to exist, and they will take and hold as tenants in common.

Clark v. Clark, 56 N. H. 105 (Foreclosure, 1875, opinion by Cusnikg, Ch. J., and Ladd and Smith, JJ.). In 1854, a son mortgaged certain land to his father. The father died in 1862, and left a will, by which he devised to the son and the latter’s wife all his interest in the mortgaged premises during their natural lives, two-thirds of remainder to their son, and one-third of the remainder to their daughter. The grandson died under twenty-one years of age, leaving no issue. His father afterwards became a bankrupt, and his assignee sold all the bankrupt’s interest in the said real estate. The bankrupt’s wife and daughter brought this bill to foreclose. The purchaser of the assignee demurred. Held, that the testator, having died after the statute of 1860, in relation to estates of married woman, whereby they, so far as their property not derived from their husbands was concerned, became practically endowed with the rights, and subject to the liabilities of unmarried women, the existence of a married woman was no longer merged in that of her husband, and the devise created a tenancy in common, between the husband and wife, and not a tenancy by entirety, which was practically abolished by the said statute.

Wales v. Coffin, 13 Allen, 213 (Oct., 1866, opinion by Wells, J.). The common law rule is stated thus: “By common law, a deed or devise to husband and wife creates one indivisible estate in them both and the survivor of them; not because of their supposed incapacity to hold in moieties, but because, such being presumed to be

It was also held that this was not opposed to the modern policy of the law, for the statute which declared tenancy in common to be the presumed form of tenure by two or more persons, expressly saved the common law tenure of husband and wife from that construction.

Stuckey v. Keefe, 26 Penn. St. 397 (Ejectment, 1856, opinion by Lewis, Oh. J.). The land was conveyed to husband and wife, their heirs and assigns, as tenants in common, and not as joint tenants. The husband died in 1830. Defendants claimed under a conveyance in 1844, by the widow. Plaintiff, under the husband’s heirs. Held, that the husband and wife both became seized of the entirety, and, on the death of either, the wholti estate went to the survivor, irrespective of the intention of the parties to the conveyance.

Trimble v. Reis, 37 Penn. St. 448 (Scire facias, 1860). In 1846, the widow and heirs of one William Peebles conveyed to George Trimble and Jane D., his wife, who was a daughter of the deceased, certain land by a deed intended merely as a partition deed. Thereafter Trimble and wife joined in a sale of part of said land, and took a mortgage to them both to secure the payment of the purchase-money. The husband released the mortgage in 1853, without the wife’s consent. Held, that under the Married Woman’s Act of 1848,—which secured the title of a wife’s real and personal property to herself, and saved it during her lifetime from any title by operation of law in her husband, so that it should not be liable for his debts, or be sold, conveyed, transferred, or encumbered by him without her consent in writing, and duly acknowledged,—the mortgage was the separate property of the wife, and that the release of the husband, without a consideration that would legally amount to a payment of the mortgage, did not bind her.

Bates v. Seely, 46 Penn. St. 248 (Debt for purchase-money, 1868, opinion by Woodward, J.). The land was conveyed to husband and wife, with express reference to the decision in Stuckey v. Keefe, 26 Penn. St. 397 , above stated. She died in 1861, leaving him and two children surviving. In 1863, he sold to Bates, $500 to be paid in hand, upon execution of the deed, and the residue to be paid in five years. Bates having refused to pay the $500, and give the mortgage upon tender of the deed, Seely brought this action. The .court below having given judgment in favor of Seely, Bates -appealed. Held, that the deed to Seely and wife was good under the Married Woman’s Act of 1848 (stated below), and that upon the death of the

French v. Mehan, 56 Penn. St. 286 (Ejectment, 1867). Husband and wife took title under a deed dated in 1828. The wife claimed as survivor of her husband, who died in 1863. The plaintiff in error claimed title under a sheriff’s sale of the land, upon a judgment against the husband, in his lifetime, subsequent to the deed. Held, that the wife was entitled to the land, discharged of the husband’s debts.

In McCurdy v. Canning, 64 Penn. St. 89 (Ejectment, 1870, opinion by Thayer, J.), husband and wife held under a conveyance in fee made to them during their coverture (in 1855), and the question was whether plaintiffs, as purchasers at sheriff’s sale of the husband’s interest, could recover possession of any part. Held, that the husband and wife during coverture were not properly joint tenants or tenants in common, but both were seized of the entirety; that neither could dispose of any part without the assent of the other, but that the whole must remain to the survivor; and that the Married Woman’s Act of 1848 prevented a purchaser at a sheriff’s sale of a husband’s interest in an estate held by entireties, while the wife lived, from recovering possession, even for the life of the husband. The clause of the act of 1848, above referred to, is as follows: “Every species and description of property, of whatever name or kind, which may accrue to any married woman during coverture, by will, descent, deed of conveyance, or otherwise, shall be owned, used, and enjoyed by such married woman as her own separate property, and shall not be subject to levy and execution for the debts or liabilities of her husband, nor shall such property be sold, conveyed, mortgaged, or transferred, or in any manner encumbered by her husband without her written consent first had and obtained, and duly acknowledged,” &c.

Diver v. Diver, 56 Penn. St. 397 (Ejectment, 1867, opinion by Strong, J.). The plaintiff was a brother of John Diver, deceased, as whose heir he claimed the land. The defendant was the widow of John. On the trial, it appeared that the mother of John was living, and she was substituted as plaintiff in the place of the brother. The land in question was conveyed in March, 1849, to John Diver and his wife, the defendant. Held, that the Married Woman’s Act of 1848, above stated, was to protect the wife’s property, by removing it from under the dominion of the husband, not to destroy the oneness of husband and wife. That the act had not in view the force and effect of the instrument by which the estate might be granted to her, but regulated its enjoyment after it had vested in her. That it no more destroyed her union with her husband than a settlement to her sepa

Fisher v. Provin, 25 Mich. 347 (Suit to quiet title, 1873). Land was conveyed in 1855 to a husband and wife, “their heirs and assigns forever.” After the death of the husband, his son and only heir-at-law quit-claimed the property. The defendant, whose title was derived through this deed, claimed an undivided half of the land, but the plaintiff, the widow, claimed the whole as survivor of her husband. Held, that the complainant and her husband did not take as tenants in common; that, on the death of her husband, the whole title inured to her, and that there was nothing in the provisions of the constitution and statutes relating to the rights of married women, which would convert such estate into a tenancy in common. The part of the constitution above referred to is as follows: “The real and personal estate of every female, acquired before marriage, and all property to which she may afterwards become entitled by gift, grant, inheritance, or devise, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations, or engagements of her husband, and may be devised or bequeathed by her as if she were unmarried.” The act of 1855 carries this into effect.

Davis v. Clark, 26 Ind. 424 (Injunction of sale on execution, 1866, opinion by Elliott, J.). In 1863, a wife joined with her husband in a deed of her lands to a third person, who afterwards reconveyed the same to the husband and wife, “the survivor to inherit.” A judgment having been subsequently obtained against the husband and a sale of this land on execution thereunder having been advertised, an injunction was asked by purchaser of land from the husband and wife. Hell, that both husband and wife were seized of an entirety under the common law, which had been expressly recognized by the statute law of the State; and that the husband had not an estate that could be sold on execution, for the statute enacted that “ no lands of any married woman shall be liable for the debts of her husband, but such land and the profits therefrom shall be her separate property, as fully as if she was unmarried; provided that such wife shall have no power to incumber or convey such lands, except by deed, in which her husband shall join.” Also, “The separate deed of the husband shall convey no interest in the wife’s land.”

Simpson v. Pearson, 31 Ind. 1 (1869, opinion by Elliott, Ch. J.). To an administrator’s petition for sale of land, which had been conveyed to the decedent and his wife in 1856, the wife answered, claim

Chandler v. Cheney, 37 Ind. 391 (Injunction against foreclosure sale, 1871, opinion by Buskibk, J., and Lewis, Ch. J.). Land conveyed in 1866 to a husband and wife, was afterwards mortgaged by the husband alone. This mortgage having been foreclosed, this proceeding was instituted by one who obtained title through a grantee of the husband and wife, subsequently to the giving of the mortgage. Held, that under the Indiana statute, the same difference existed between joint tenants and tenants by entireties, as at common law, and that the husband and wife took under the above deed as tenants by entireties, and that the injunction should be granted. Lewis, Ch. J., in his opinion, says: “The legislature [in 1851-2], abolished tenancies by curtesy in the husband, and dower in the wife, and gave the wife one-third in fee, subject to certain limitations and restrictions. It secured to the wife her separate estate in her lands, and deprived the husband of the power of alienating or incumbering it, without her consent and concurrence, and declared that it should not be seized and sold upon execution for the debts of the husband. It abolished estates tail. It modified the common law in reference to joint tenancies, by providing that a joint deed to two or more should be construed to be tenancies in common, unless the intention to create a joint tenancy was expressly declared in the deed, or was made manifestly to appear from the tenor of the instrument.. But it did not abolish estates by the entireties as between husband and wife, but provided that when a joint deed was made to husband and wife, they should hold by entireties, and not as tenants in common or as joint tenants.....It is quite obvious to us, that the evident and manifest intention of the legislature, in providing for the continuance of estates by entireties, as between husband and wife, when joint tenancies between persons who were not married had been virtually abolished, was to provide a mode in which a safe and suitable provision could be made for married women.”

Jones v. Chandler, 40 Ind. 588 (1872, opinion by Pettit, Ch. J.). Held, that a will devising land to a husband and wife creates an estate by entirety, and husband cannot alienate it, nor can it be sold on execution against him to the wife’s prejudice.

Anderson v. Tannehill, 42 Ind. 131 (Action to enforce vendor’s lien, 1873, opinion by Buskibk, J.). A husband and wife and a third person were joint purchasers of real estate in 1867. Held, that the husband and wife took an undivided one-half of the premises as tenants by entireties.

Hulett v. Inlow, 57 Ind. 413 (Injunction, 1877, opinion by Perkins, J.). A conveyance of land was made in 1868, to a husband and wife, and a third person. A judgment having been obtained against the husband, execution was levied on one third part of the land, and it was advertised for sale. Held, that the real estate conveyed to a husband and wife and a third person, is held by husband and wife as tenants by entireties, though they be not described therein as husband and wife, and is not subject to execution for the debts of the husband.

Lash v. Lash, 58 Ind. 526 (Partition, 1877, opinion by Perkins, J.). In 1870, the land in question was conveyed to husband and wife “as joint tenants (survivor taking the whole)”. In 1873, the wife obtained a divorce from her husband, who died thereafter in 1873. His children brought this action, claiming an undivided half. In sustaining demurrer to the complaint, the court held, that upon the death of the husband, the whole estate vested on the wife. The judge says: “ The deed of conveyance, as appears in this case, declared the grantees to be joint tenants, with right of survivorship. We need not inquire whether this tenancy, so declared, superseded, during the continuance

Bennett v. Child, 19 Wisc. 362 (Injunction, 1865, opinion by Downer, J.). In 1854 a husband and wife took deed to the land running to both. In 1860, the land was sold on an execution against the husband. This action was to restrain the sheriff from giving a deed to the purchaser. The statute of Wisconsin, relating to married women, provides that a married woman can receive and hold real and personal property to her sole and separate use; can convey and devise real and personal property, including the rents and profits of the same as a feme sole; that the husband has no control over, or power to dispose of her property, real or personal; and the same is not liable for his debts. Held, that the husband and wife took by entireties, as at common law, and that the statute was not intended to apply to estates of this kind.

Robinson v. Eagle, 29 Ark. 202 (1874, opinion by Witherspoon, Sp. J.). A father conveyed land to his daughter and her husband. After the daughter’s death, her husband conveyed it to his wife’s sister. The plaintiff claimed that at the death of the wife the estate descended as an estate in common, and her father was entitled to recover the same, and receive one-half of the rents and profits thereof from her death. Held, that the common law rule that the husband and wife were seized of the entirety in the land had not been changed .by statute, nor by the constitution, which provided as follows: “The real and personal property of any female in this State, acquired either before or after marriage, whether by gift, grant, inheritance, devise, or otherwise, shall, so long as she may choose, be and remain the separate estate and property of such female, and may be devised or bequeathed by her, the same as if she were feme sole.”

See also a discussion of this subject in 5 Southern Law Rev. N. S. 161.