
    Stelz v. Schreck et al.
    
    
      (Supreme Court, General Term, First Department.
    
    April 17, 1891.)
    1. Right to Dower.
    After a conveyance of land by deed jointly to a husband and wife, the husband "obtained a divorce from the wife for her adultery. Held, that their estate in the land under the deed, which vested each with the entirety, with right of survivor-ship, was changed by the divorce into a tenancy in common; and that a wife whom the husband subsequently married, and who survived him, was entitled to dower in one undivided half of the land.
    
      2. Dower—Allotment—Evidence.
    In an action by such second wife for her dower, evidence that the purchase price of the land was paid by the husband is not admissible, as it could not change the title created by the deed and the marital relation of the grantees. Affirming 10 N. Y. Supp. 790.
    Appeals from special term, New York county.
    Action by Maria Stelz against Minnie Schreck and others, for dower. Each party appeals from a judgment in favor of plaintiff for dower in an equal undivided half of certain real estate, and each also moves for a new trial.
    Argued before Van Brunt, P. J., and Daniels, J.
    
      George H. Kracht, for plaintiff.
    
      Lewis S. Goebel, (Edward W. S. Johnston, of counsel,) for defendant Minnie Schreck.
    
      A. S. Hamersley, Jr., (S. Jones, of counsel,) guardian ad litem of defendants Henry and Conrad Koehler.
   Daniels, J.

The land in question was conveyed, by deed, jointly to William Stelz and the defendant Minnie Schreck, who were then husband and wife. The effect of this deed was to vest each of the grantees with the entirety and the right of absolute ownership in the survivor. Jackson v. McConnell, 19 Wend. 175; Washburn v. Burns, 34 N. J. Law, 18; Bram v. Bram, 34 Hun, 487; Zorntlein v. Bram, 100 N. Y. 12, 2 N. E. Rep. 388; Chandler v. Cheney, 37 Ind. 391. As to these results of the conveyance, the law has been uniform in its determinations. After this conveyance had in this manner taken effect, AVilliam Stelz obtained a divorce from his wife, Minnie Stelz, now Minnie Schreck, because of her adultery; and soon afterwards he married the plaintiff, and he died on the 8th of February, 1889, leaving a will which has been.admitted to probate by the surrogate of the county of New York. The plaintiff then brought her action for dower in this real estate, and the court, at the trial, sustained her right to be endowed in the equal undivided half of the land, on the ground that, after the divorce, the parties to that action became tenants in common. This view has failed to meet the approval of either party, and each has appealed from the interlocutory judgment, and uselessly added a motion for a new "trial. The statute has not declared that a decree of divorce, on the ground of adultery, shall affect or change the seisin of the former husband and wife, under a deed to them jointly. It has been extended no further than to exclude the delinquent wife from dower in her husband’s real estate, and from all participation in his personal property, (3 Rev. St., 6th Ed., p. 157, § 61;) and forfeited every jointure, devise, and pecuniary provision made for her in lieu of dower, (2 Rev. St., 6th Ed., p. 1122, § 15.) Whether the seisin and estate created by this deed has been changed must accordingly be determined from the effect the decree necessarily had on the relations of the parties. After it was recovered, .they were no longer one person in law. From that time they ceased to be husband and wife, and became as completely two persons as though they had not been married. The joint seisin by the entirety resulted in judgment of the law from the deed having been made to them as husband and wife. It arose out of, and depended upon, that relation. That was its legal foundation, and .that was completely removed and abrogated by the decree of divorce. The basis of this seisin wholly disappeared when the divorce was recovered; and logically it followed that, as the grantees in the deed could no longer hold under the tenure, resulting from the marriage, that the estate in the land must have been thereby changed; and, as they had become in law two persons, that the deed to them from that time created a tenancy in common, the same as it would if they had been unmarried when it was delivered. They were no longer seised in the entirety, for the marriage on which that depended had been dissolved; and when that was done, then the deed had its effect as a joint conveyance to two persons, creating the only estate permitted under its language, of a tenancy in common. It is an incidental consequence resulting from the separation of the grantee's into two legal and distinct individuals. This subject, under similar circumstances, was examined in Ames v. Norman, 4 Sneed, 683, and this effect was held to follow a decree for a divorce; and it has been further followed in Lash v. Lash, 58 Ind. 526, and Harrer v. Wallner, 80 Ill. 197; and this view has been commended in 2 Bish. Mar. & Div. § 716. While the principle cannot be affirmed to be free from doubt, it seems to legally follow from the radical change made in the relations of the parties by the decree of divorce. The exclusion of the evidence offered to prove that the purchase price of the land was paid by the husband was not erroneous; for that fact could have worked no change in the title. It was created by the deed and the marital relation of these persons. In the action for the divorce it might have been entirely pertinent in the way of excluding the guilty wife from all interest in the land. Renwiok v. Renwiok, 10 Paige, 421. But upon this trial that could not be done. The offer came too late. The case seems to have been disposed of as it should be by the special term, and the judgment should be affirmed, and the motions for a new trial denied; and, as neither party succeeds, it should be without costs.  