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271. That Husband and Wife cannot take by Moieties.— We have seen that the peculiar ground on which the tenancy by entireties rests is the legal identity of husband and wife. "Husband and wife being one person in law, they cannot, during the coverture, take separate estates; and therefore, upon a purchase by both, they cannot be seized by moieties, but both and each has the entirety.' 1 The language just quoted was used in support of the proposition that husband and wife take by entireties in all cases when there is no express limitation. But, going beyond the necessities of the case out of which it arose, it assumes, beyond mistake, that the inevitable consequence of the legal identity of husband and wife is, that they can receive, during coverture, no estate which does not vest in them by entireties. No doubt, there are a number of cases, both English and American, containing dicta which, like that quoted above, seem inconsistent with the possibility of husband and wife receiving an estate by moieties. But in addition to the dicta alluded to, there are cases directly in point affirming that the spouses cannot take estates as tenants in common, nor as joint-tenants. Thus, in New York, a deed was made to J. C. and his wife "as tenants in common, and in equality of estate, and not as joint-tenants." The Assistant Vice-Chancellor, after some discussion of the authorities, determined that this conveyance necessarily passed an estate by entireties, because there was "a legal incapacity to take in severalty, arising from a legal identity; and a grantor cannot remove that incapacity without the intervention of a trustee." In Pennsylvania, a deed to Wm. B. and his wife Rebecca, purported to convey to them "as tenants in common, and not as joint-tenants." After citing and approving the decision made by the Assistant Vice-Chancellor in New York, the Supreme Court of Pennsylvania, in an opinion in reference to the legal effect of this last deed, said: "If the doctrine to which we refer is not a mere rule for ascertaining the meaning of words, but a rule of law founded on the rights and incapacities of the matrimonial union, it
1 Green r. King, 2 W. Bl. 121.
Rogers v. Benson, 5 John. Ch. 437; Jackson v. Stevens, 16 Johns. 115; Barber v. Harris, 15 Wend. 617.
3 Dias e. Glover, 1 Hoffm. Ch. 76.
must be obvious that the intention of the parties to the conveyance is entirely immaterial. If the husband and wife cannot take a conveyance by moieties, if they are absolutely incapable of receiving such a grant, it is clear that no words in the conveyance to them, however clearly expressed, can give them that capacity. How stands the argument on this question? Tenants in common may sell their respective shares. They are compellable to make partition. They are liable to reciprocal actions of waste and account; and if one turns the other out of possession, an action of ejectment will lie against him. These incidents cannot exist in an estate held by husband and wife. No action of partition or waste, or account or ejectment, can be maintained by one against the other. The husband could not sell his moiety free from the dower of his wife. The wife could not sell hers at all without the consent of her husband. It is evident, therefore, that the estate, during the lives of the grantees, or during the continuance of the marriage bond, would have none of the chief incidents of a tenancy in common. The existence of a tenancy in common, which cannot be so held or enjoyed during the lives of the holders, and which has none of the incidents of such an estate, is a legal impossibility. If they cannot hold in common during their lives, of course they cannot so hold after. one of the parties is dead." So, in Ireland, when a conveyance was made to husband and wife, the Court was "of opinion that the operation of that conveyance was to grant an estate by entireties; for to speak of a grant to a husband and wife as an estate of joint-tenancy is, properly speaking, a solecism."2
72. That Husband and Wife may take by Moieties.The decisions, as we have seen in the preceding section, denying that husband and wife may take an estate other than by entireties, rest upon two grounds. The first and chief of these grounds is that the spouses cannot take any other estate; the second, as appears from the reasoning quoted from the opinion of the Supreme Court of Pennsylvania, is that the spouses cannot, during coverture, enjoy any other estate.
Stuckey v. Keefe's Ex. 26 Pa. St. 400.
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; Co. Litt. 187 b. So a wife may become tenant in common with her husband, by a conveyance to her from her husband's cotenant. (Moore v. Moore, 47 N. Y. 467.)
Paine v. Wagner, 12 Sim. 188.
3 Barber v. Harris, 15 Wend. 617.
41 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.""
Hicks v. Cochran, 4 Edw. Ch. 110.
273. 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.2 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
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.
"Washburn v. Burns, 34 N. J. Law, 19; Co. Litt. 147 a; Beaumont's Case, 9 Rep.
3 Draper e. Jackson, 16 Mass. 486; Grute v. Locroft, Cro. Eliz. 287; Watts e. Thomas,