
    Julia Abel Messing, Appellant, v. John W. Messing, Respondent, Impleaded with Others.
    
      Deed to a woman and her affianced husband—when on their marriage it creates a tenancy by the entirety — an accounting by the husband who has received the avails of a mortgage and the rents and profits of the land, compelled.
    
    A deed executed by a woman to her daughter and the latter’s affianced husband, in order to provide a home for them, which states that the grantees shall take “as joint tenants, and not as tenants in common, the survivor to take of the second part,’’ creates, when the arrangement is consummated by the marriage of the grantees, a tenancy by the entirety and not a joint tenancy, and neither of the grantees can maintain an action of partition.
    Where it appears that the wife joined in mortgages on the property “at the special instance and request” of her husband, and that he received the entire avails thereof for his own use and benefit, and that in addition thereto he has had the solo care and management of the property, “ and has * * * received most of the rents and profits ” thereof during their joint ownership, the wife is entitled to maintain an action against her husband for an accounting.
    Appeal by the plaintiff, Julia Abel Messing, from a judgment of the Supreme Court in favor of the defendant, John W. Messing, entered in the office of the clerk of the county of Erie on the 16th day of April, 1901, upon the decision of ■ the court, rendered after a trial at the Erie Special Term, dismissing the complaint as against said defendant.
    
      Fred D. Corey, for the appellant.
    
      William, C. Fitch, for the respondent.
   Spring, J.:

This is an action primarily of partition commenced May 24,1900, by the plaintiff, who is the wife of the defendant, John W. Messing. By a deed of conveyance, executed and delivered February 13,1814, Susannah Meld, the mother of the plaintiff, conveyed to the latter and the defendant, John W. Messing, the premises described in the complaint, which are situated on Allen street in the city of Buffalo. The deed was made to the grantees to provide a home for them, as they were then expecting to intermarry, and that event was consummated the eighteenth of May following. The deed provides that the grantees shall take as joint tenants, and not as tenants in common, the survivor to take of the second part.”

The question is, whether the plaintiff is- simply a joint tenant of the property with her husband, for, if so, the land is capable of severance, and the action of partition will lie. (Code Civ. Proc. § 1532; Cloos v. Cloos, 55 Hun, 450; Jooss v. Fey, 129 N. Y. 17.)

If the parties are vested as joint tenants either can convey to a stranger, and the relation between that grantee arid the other original joint tenant' becomes that of tenancy in common. (1 Washb, Peal Prop. [3d ed.] 558.)

The right of survivorship, which is an essential element of joint tenancy, only terminates with the entire estate in the survivor when the original joint tenants retain the title at the time of the death of one of them. The right to convey, in the meantime, is unhampered, and by reason of this fact partition is permissible by action. This power to sever the premises is the peculiarity of the estate chiefly distinguishing it from that by the entirety. (Hiles v. Fisher, 144 N. Y. 306, 312.)

The parties could make whatever contract they saw fit as to the quality of the title held by them. They evidently wished an estate partaking of the attributes of joint tenancy and they accordingly provided for that relation. But they were not satisfied with this estate pure and simple, but sought to impose a limitation upon it by depriving either cotenant of the right to alien independently of the other, thus assuring to the surviving grantee the whole premises unless they voluntarily parted with the title. It.was an estate of joint tenancy, but with the restrictive characteristic imparted to it which is the marrow of the title by the entirety. Either the language is to be given this construction or else it is tautological or meaningless. We must give force to it if possible without doing violence to the apparent intention of the parties. That this interpretation accords with their scheme is borne out by the extrinsic evidence showing their relations to each other and: to the property. The grantor was the mother of the plaintiff; the deed was made in expectation of an early marriage of the grantees, and the premises were designed for their home. All these are circumstances confirming the deduction that the language referred to was included in the deed for a purpose. If the premises were permitted to be sold or divided by this action, the right of survivorship would be destroyed and the design of the parties to it at its inception would be thwarted. We are satisfied, therefore, that the action in tha aspect of it cannot be maintained.

The complaint alleges that the said owners gave two mortgages upon these premises aggregating in amount $1,160 ; that the plain tiff joined in these mortgages “ at the special instance and request ” of her husband and that he received the entire avails thereof for his own use and benefit; that in addition thereto he also had the sole care and management of this property and has * * * received most of the rents and profits ” thereof during their joint ownership ; that he has refused to account or pay the plaintiff her portion thereof and she asks judgment for an accounting. There was some proof given on the trial in support of these allegations, but evidently by the acquiescence of the parties the accounting was deferred until the determination of the question of the right of the plaintiff to maintain the action of partition. There was, however, no consent to a dismissal of the complaint if the action for its primary purpose could not be sustained. I think the court erred in dismissing the complaint. Whatever is the character of the estate held by the grantees the plaintiff is entitled to her proportion of the rents and profits and the income of the property during coverture the same as if she were a feme sole. (Hiles v. Fisher, 144 N. Y. 306, 314 et seq., supra; Grosser v. Gity of Rochester, 148 id. 235.)

One joint tenant may recover by action his just proportion against his co-tenant who has received more than his own just proportion.” (Code Civ. Proc. § 1666.)

These claims, are not an incident to the right to partition the premises, but constitute a separate, independent cause of action and were fully set out in the complaint.

The judgment should, therefore, be reversed, with costs to the appellant to abide the event, and a new trial granted to enable a trial of that part thereof which pertains to an accounting between the parties.

All concurred.

Judgment reversed upon questions of law and of fact and new tidal ordered, with costs to the appellant to abide event.  