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The second ground can, we think, be readily disposed of, by the authorities. For though the rights and remedies of a married woman, who is cotenant with her husband, may be limited during coverture, she is nevertheless as much a cotenant with him as she was before their marriage. There can be no doubt that if a man and woman, holding an estate as cotenants, marry, they will continue to be joint-tenants, or tenants in common, as before their marriage. So there is no reason for asserting that husband and wife cannot hold but by entireties. But the second ground cannot be so easily answered. Husband and wife may take an estate as tenants in common, or as joint-tenants, as between themselves and others. Thus, if a bequest were made to A and wife and B, with words of severance, it would vest as a tenancy in common-A and wife having one moiety, and B the other; but the moiety of A and wife would nevertheless vest in them as an entirety. But it is doubtful whether any reported case, prior to the publication of Mr. Preston's "Treatise on Estates," ever supported the doctrine that, as between themselves, husband and wife can take an estate other than by entireties. In that treatise, the assertion was made, that "in point of fact, and agreeable to natural reason, free from artificial deductions, the husband and wife are distinct and 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." Clear as this language is, and logical as it seems to be, it has the peculiarity of being the cause rather than the result of the reported decisions in harmony with it. It finds no support in the early reports or text-books; and Mr. Preston was so fully aware of the doubtful character of his assertion that, in his work on Abstracts of Title,' he repeated it in this modified
1 Moody v. Moody, Amb. 649; McDermott v. French, 15 N. J. Eq. 80; Dew v. Hardenbergh, 5 Halst. 46; S. C. 18 Am. Dec. 371; Co. Litt. 187 b. So a wife may become tenant in common with her husband, by a conveyance to her from her husband's co-tenant. Moore v. Moore, 47 N. Y. 467.
Paine v. Wagner, 12 Sim. 188.
Barber v. Harris, 15 Wend. 617.
1 Prest. on Estates, 132.
Vol. 2, p. 41.
form: "And even a husband and wife may, by express words, at least so the law is understood, be made tenants in common. by a gift to them during coverture." In America, the doctrine of Mr. Preston has met with some approval. In New York, the decisions are variant. That of the Assistant ViceChancellor, made in 1839, has already been alluded to in the preceding section. Subsequently, a case came before the Vice-Chancellor, where a deed had been made to husband and wife, "the one equal half part to each." The decision made upon this deed was based upon a citation from one of Mr. Preston's works. The Vice-Chancellor stated the substance of the rule as laid down by Mr. Preston, and added: "I have no hesitation about adopting and following this rule, especially in a court of equity where the intention of the parties in any deed or instrument, not contrary to law, should be allowed to prevail." In New Jersey, a bill for partition alleged that on the 1st of September, 1858, a husband and wife were seized in fee of the premises, as tenants in common, by virtue of a certain conveyance made to them; that thereafter the husband had sold his interest to the complainant. The bill was against the wife to compel partition. A demurrer was interposed, on the ground that the estate conveyed to the husband and wife must necessarily have been an entirety, and was therefore not subject to partition. This portion of the demurrer was overruled, on the authority of Mr. Preston, reference being made to his work on Estates. The Chancellor said: "So it seems that a husband and wife may, by express words, be made tenants in common by gift to them during coverture. 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 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. objection cannot prevail upon demurrer."?
73. Power of Husband over Estate by Entireties.The title and rights of the wife in an estate held by herself and husband by entireties, are not liable to be conveyed, encumbered, or otherwise prejudiced or disposed of, by her husband to any greater extent than though such estate was vested in her exclusively in her own right. Many cases contain the general statement that no conveyance or encumbrance made by the husband is valid against the wife.' Upon examination of these cases, it will be found that the general language employed in them is applicable only to the rights of the wife as the survivor of such species of property as would not have been subject to the control and disposal of the husband had she owned it in severalty. As to such property, not even the conviction of a husband for high treason can defeat the right of his wife to the whole as survivor. It must be remembered that a husband by marriage acquires, "during coverture, the usufruct of all the real estate which his wife has, in fee-simple, fee-tail, or for life;" that he has the further right to reduce her personal estate to his possession, to sue for her chattels and upon her choses in action in his own name, and to dispose of her personal property as he may think fit. The same power which enables a husband to obtain possession and control of the wife's estate when held by her in severalty, entitles him to a similar power over her interest in like property held by herself and husband in entireties. There is therefore little or no doubt that, by the common law, the husband could dispose of the possession of real estate held by entireties, and that he could mortgage and otherwise encumber such real estate, and that his grantee or mortgagee thereby acquired rights which were paramount to the rights of the wife during the life of the husband, and subordinate only to her claim as survivor. So in regard to personal estate held by entireties, the husband could reduce it to his sole possession, and claim and hold it as his sole property. When he so reduced it, it became his, and he could sell or encumber it at his pleasure.3
1 Doe v. Parratt, 5 T. R. 655; Bennett v. Child, 19 Wis. 365; Bomar v. Mullins, 4 Rich. Eq. 80; Ketchum v. Walsworth, 5 Wis. 95; 68 Am. Dec. 49; Doe v. Howland, 8 Cowen, 277; S. C. 18 Am. Dec. 415.
2 Washburn v. Burns, 34 N. J. L. 19; Co. Litt. 147 a; Beaumont's Case, 9 Rep. 140 b. Draper v. Jackson, 16 Mass. 486; Grute v. Locroft, Cro. Eliz. 287; Watts v. Thomas,
274. Sale under Execution.-In a recent work on Judicial Sales, the statement is made that "no separate proceeding against one of them during their joint lives will, by sale, affect the title to the property as against the other one as survivor, or as against the two during their joint lives." The rule as thus laid down, ignores the interest which the husband, by his marital rights, has in the property of his wife. As the husband could, by the common law, dispose of all chattels and chattel interests of the wife, and of the possession of her real estate during their joint lives, he had such an interest in her estate as might be subjected to involuntary alienation by sale under execution. Hence, there seems but little doubt that where the marital rights of the husband in the wife's property remain as at common law, they are subject to seizure and forced sale under execution; and that the purchaser at such sale will acquire an interest in the estate sold, by virtue of which he will succeed to all the rights and privileges which the husband had, by law, in the property sold.' It is true that a few American cases are inconsistent with this rule. Most of them seem to have been decided, so far as this point is concerned, without any consideration of the authorities, and without any necessity of determining this question. But in Indiana, this point was recently considered at great length, and most of the authorities bearing on the subject were commented upon by the Court. The result was a denial of the husband's marital powers over an estate held in entireties, including a denial of his right to dispose of the possession of real estate, or in any way to transfer to a third person, by voluntary or involuntary alienation, any interest which could be asserted against the wife, even during her husband's lifetime. The Court said: "As between husband and wife, there is but one owner, and that is neither the one
2 P. Wms. 364; Bates v. Dandy, 2 Atk. 207; McCurdy v. Canning, 64 Pa. St. 40; Bennett v. Child, 19 Wis. 365; Torrey v. Torrey, 14 N. Y. 430; Jackson v. McConnell, 19 Wend. 175; Barber v. Harris, 15 Wend. 617; Ames v. Norman, 4 Sneed, 692; Farmer v. Gregory, 49 Barb. 155.
Rorer on Judicial Sales, sec. 549.
Ames v. Norman, 4 Sneed, 692; Stoebler v. Knerr, 5 Watts, 181; French v. Mehan, 56 Pa. St. 289; McCurdy v. Canning, 64 Pa. St. 41; Bennett v. Child, 19 Wis. 362; Litchfield v. Cudworth, 15 Pick. 23; Brown v. Gale, 5 N. H. 416.
3 Jackson v. McConnell, 19 Wend. 178; Thomas v. De Baum, 1 McCarter Ch. 40.
nor the other, but both together. The estate belongs as well to the wife as to the husband. Then, how can the husband possess any interest separate from his wife, or how can he alienate or encumber the estate, when all the authorities agree that the wife can neither convey nor encumber such estate? We are of the opinion that, from the peculiar nature of this estate, and from the legal relations of the parties, there must be unity of estate, unity of possession, unity of control, and unity in conveying or encumbering it; and it necessarily and logically results that it cannot be sold upon execution for the separate debts of either the husband or of the wife. The estate is placed beyond the exclusive control of either of the parties, or the reach of creditors, unless it can be successfully attached and set aside for fraud."
275. Husband's Powers affected by Statutes.-In many of the States, the common law in regard to the marital rights of a husband in the property of his wife, has been materially modified by statute. These statutes influence the law in regard to estates held in entireties as well as in regard to those held by the wife in severalty. Thus, in Pennsylvania, the act of April 11, 1848, declared that "every species of property of whatever name or kind, which may accrue to any married woman during coverture, 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 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." Under this act, it has been determined that a purchaser of the husband's interest in property held in entireties, either at a voluntary or an involuntary sale, can never assert it against the wife, because if the claims of such purchaser were recognized, the rights of the wife would be disregarded: 1st, by destroying her estate by entireties, and creating out of it a tenancy in common; 2d, by depriving her of her possession with her husband, and obliging her to hold possession with a stranger; 3d, by taking away her property without her
1 Chandler v. Cheney, 37 Ind. 408.