
    Taul vs Campbell.
    When land is conveyed in fee, to husband and wife, they take the estate by entireties; neither is seized of a moiety, but both, forming one legal person, are seized of the whole, and upon the death of one, the entire estate, which before was joint, is vested solely in the survivor.
    This was an action of ejectment, brought by the lessors of the defendant in error, against the plaintiff in error, to recover a moiety of lot No.-, in the town of Nashville. The parties agreed upon the following facts:
    “In this case, it is agreed by the parties that Caroline P. Anderson was seized and possessed of the lot in dispute:, as of her own.right, in fee, the same having been devised to her by her relation; that being so seized and possessed, she afterwards, to wit, on the 7th of March, 1827, intermarried with Thomas P. Taul, who entered into possession by virtue of the coverture. The said Taul and wife, being so seized and possessed, afterwards, to wit, on the 23d of July, ■ 1828, signed, sealed and delivered a deed of bargain and sale, of that date, conveying the same lot or parcel of land to Benjamin Deck-ard, and the s'aid Decliard on the next day, to wit, on the 24th day of July, 1828, by deed of that date, sold and conveyed the said land to the said Thomas P. Taul, and Caroline his wife, by virtue of which deed the said Thomas P. Taul, and Caroline his wife, were possessed of said tract of land, with its appurtenances; and being so possessed, the said Caroline, afterwards, to wit, on the 30th day of August, 1828, departed this life intestate, and without issue, leaving the said Thomas P. Taul, her surviving, and leaving also the above named plaintiffs, her brothers and sisters, to wit, Musi-dora B. Campbell and Rufus K. Anderson, of the whole blood, and the others of the half blood. Thomas P. Taul afterwards, on the 26th of August, 1829, departed this life, having previously made his last will and testament, dated 24th August, 1S29, devising all his real and personal estate to the delendant, Micah Taul and Louisiana Bradford, which will was duly proved in the proper county, and admitted to record. The deeds from Taul and wife to Deckard, and from Deck-ard to Taul and wife, and the will of Taul, are herewith referred to, and are to be taken,with all their certificates of probate, acknowledgment, and privy examinations, as part of this agreed case.
    The probate of the deed of Taul and wife to Deckard, was as follows:
    .“State of Tennessee, Franklin county, Franklin circuit court, July term 1828. The foregoing deed of conveyance from Thomas P. Taul and Caroline P. Taul his wife,, to Benjamin Deckard, was this day, in’ open court, signed, sealed, delivered, and duly acknowledged by the said Thomas P. Taul and Caroline P. Taul, to be their act and deed, for the purpose therein named. The said Caroline P. Taul having been first privily examined by the court, separate and apart from her husband, she then declaring that she executed the deed aforesaid, of her own free will and accord, without the threats or persuasions of her husband, and the court being satisfied thereof, wherefore the same is admitted to record and ordered to be certified for registration. In testimoney whereof, I have hereunto subscribed my name and affixed my private seal, (having no official seal of office) this 23d July, 1828.
    Teste JONATHAN SPYKER, Clk.
    By P. S. DECKARD, D. P. '
    State of Tennessee, Franklin county, viz: Franklin circuit court, July term 1828. The foregoing deed of conveyance from Thorn as P. Taul and Caroline P. Taul, his wife, was this day signed, sealed, delivered, and duly acknowledged in open court, by the said Thomas P. Taul and Caroline P. Taul, to be their act and deed, for the purposes therein named, she, the said Caroline,, haping been first privily examined by me, separate and apart from her husband, and I was satisfied that she executed the same of her own free will and accord, without the threats or persuasions of her .husband: Whereupon the same is admitted of record, and ordered to be certified for registration accordingly. -In testimony whereof, I have hereunto affixed my hand and seal in open court, this 23d July, 1S28.
    NATH. W. WILLIAMS, [seal.]”
    The parties submit to the court the following questions:
    1st. Whether by virtue of the above deeds, 'from Taul and wife to Deckard, and from Deckard to Taul and wife, as proven, acknowledged and registered, the legal title, in lee, was vested in the said Taul and wife, that is, whether the probate or acknowledgment of the deed, from Taul and wife, be in due form, and sufficient to pass the interest and estate of said Caroline to said Deckard?
    2d. Whether upon the death of said Caroline the whole estate survived to and was vested in her said husband, Thomas P., or whether the same, or any part thereof, descended to her brothers and sisters?
    And it is agreed, that the court shall decide the whole case, and give judgment according to the right. If the court be of opinion, that the plaintiff is entitled to recover the lot, or any part thereof, judgment shall be given accordingly, and also for costs, and writs of possession, &c. awarded. If the court be of opinion, that the plaintiff is not entitled to recover the said lot, or any p'art thereof, but that the right is with the defendant, judgment shall be entered in the favor of defendant, and execution awarded against the plaintiff for costs &c. From which judgment either party shall have the right of appeal to the supreme court, as in other cases. It is also agreed, that the original defendant was in possession of the lot in dispute, at the commencement of this suit.
    
      The circuit court rendered a judgment in favor of the lessor of the plaintiff for a moiety, from which judgment an appeal in the nature of a writ of error was prosecuted to this court.
    
      J. Rucks, for plaintiff in error.
    There are two questions made in this case.
    1st. Upon the probate and registration of the deed made by Thomas P. Taul and his wife, to Benjamin Deckard.
    2d. Upon the operation of the deed from Benjamin Deckard to Thomas P. Taul and his wife Caroline, she having died, in his life time, without issue.
    It is not perceived that any serious objection can be made to the probate and registration; it will therefor© be passed over.
    Upon the 2d point, there was more controversy in the court below.
    It has been settled, from the earliest times up to the present, that a conveyance to man and wife does not make them joint tenants, nor tenants in common, for they are one person in law, have one seizin of the entire estate, and neither can dispose of any part of it, without the assent of the other, and the whole belongs to the survivor, 2 Black. Com. 182: 2 Kent’s Com. 132.
    The whole case then turns upon the act of 1784, sec. 2, and sec. 6. The Legislature, in the 6th sec., abolishes the right of survivorship in all real and personal estates, held in joint tenancy, and provides, that the part or share of the person dying, shall descend to his heirs, executors, administrators, or asssigns, and shall not remain to the survivor; and they give this reason, that such survivorship is manifest injustice to the family of him who may happen to die first.
    The case of husband and wife is not within this section, because,
    1st. It is not a joint tenancy, and the statute designates
    
      and specifies joint tenancies; we must therefore look to the common law, and see what a joint tenancy is. 1 Black. Com. 59.
    2d. Being out of the letter, it is also out of the reason of the statute, for the heirs of husband and wife are the same; and not different persons, as with joint tenants. When the husband or wife happen to die first, it is not manifest injustice to the family of the deceased, for the" same children inherit it most generally, upon the death of the survivor. Joint tenants have different families, and different heirs, therefore, survivorship is injustice to him who dies first. Husband and wife have the same family, the same heirs, so the reason is different. Grider vs. Rodgers, decided by the court of appeals of Kentucky: Coke Lit. 187-8: 2 Yes. 120: Fearn. 40: 16 John. 115: 5 J. C. R. 347: 5 Mass. 521: 3 Rand. 179.
    It would be impossible to read this section, with the proviso, and suppose the legislature had man and wife in view. But the counsel on the other side, in the court below, did not insist that the case was within this section; they relied solely upon the 2d section.
    The C. Justice in 3 Yer. 561, intimates an opinion, that the right of survivorship between husband and wife was abolished by this section. The question, however, did not arise in that case, and the other two judges were explicit in entering their dissent.
    This act was passed more than fifty years ago, and no adjudicated case, not a dictum except the above, can be found, giving it the construction now contended for, and the understanding of the whole bar of the State has been uniformly against that construction, so far as I have , been able to ascertain it, nor is it believed that any one rule for the interpretation of statutes, known to the common law, will justify such a construction.
    Ch. J. Marshall, 2 Cran. 400, says, where the words are ambiguous, we may resort even to the title of the statute. This is entitled “an act to regulate the descent 0f real estates, not to add to the list of descendible es~ tates.
    The preamble shows most obviously the object and intention of the legislature. Their object was, that estates of persons dying intestate should undergo a more equal distribution than had before that time prevailed.
    The word “estates” means descendible estates, not estates for life, or for years;mot such estates as did not descend. The new rule was only to be more equal than the old; to wit, that those estates which had descended to the eldest son should be divided equally between all the sons for this reason, “that it will tend to promote that equality of property, which is of the spirit and principle of a genuine republic.”
    That is, the eldest son, by inheriting the whole estate, was pampered into consequence, and tempted to imitate the habits, and assume the authority of the nobility of England, and the younger sons being left in poverty, were reduced to the vassalage and subjection of the lower classes in that country.
    If the words of this statute were doubtful; if they might bear a double meaning, Lord Coke tells us, this is the key to unlock their meaning. C. Lit. 79, a: 1 Plow. 369: 4 Term Rep. 793: 4 Coke’s In. 330.
    It is most clear, that the right of survivorship, between husband and wife, is not within the reason or policy of this preamble.
    But, can the enacting clause be construed to embrace it? “When any person shall die seized or possessed of, or having any right, title or interest, in or to any estate, or inheritance of land, or other real estate in fee simple, and such person shall die intestate, his or her estate or inheritance shall descend in the following manner, to wit, to all the sons, &c.”
    “Seized or possessed of.” These words have no ambiguity, when applied to the context. Abstractly, the word seizin applies to estates of freehold, estates for life, or more. 4 Dane, 16; but here it cannot be used . ’ , , , , , , in so large a sense: tor though a man may be seized ot an estate for life, yet it cannot, upon his death, descend to his heirs.
    The word possessed is technically, applicable to personal property, or chattel interests inlands; but it cannot have that construction in this sentence, for such property does not descend to the heir, but goes to the executor.
    These words are used in reference to the estate or inheritance of land; to wit, when any person shall die seized or possessed of any estate or inheritance of land, &c. The legislature was regulating estates of inheritance in land; it would be repugnant to all rules to apply them to estates which did not descend to the heir, upon the death of the ancestor.
    The application of these words is still more plain, when taken in connection with the whole sentence. If he shall die seized of, or possessed of, or have any right or title to, or interest in, any estate of inheritance, it shall descend, &c. The seizin, the possession, the-right, the title, the interest, all apply to the estate, which must be an estate of inheritance. A man may be seized or possessed; he may have a right, title and interest in and to other property; but the seizin or possession, the right, title and interest here meant, must be of inheritances in land, or other real estate in fee simple.
    What do these last words mean, “inheritances in land, or other estate, in fee simple.” The word estate here again means estate of inheritance in fee simple.
    The word fee, in its origin, denoted that the land vras holden of a superior lord, by military or other services; it now denotes the quantity of interest that the owner has in the land. 1 Cruise D. 17, 18.
    Fee simple is an estate to a man and his heirs forever, generally, absolutely and simply. 2 Black. Com. 104.
    
      Inheritance of land did not include every estate which descended to the eldest son; therefore they said, mhen-tance of land, or other estate in fee simple; such as the pew of a church, the second floor of a great building, rents, commons, &c. These things are not included in the word land; they are tenements, and pass by descent. 2 Black. Com. 17: C. Lit. 6, 13, 14: 4 Cruise, 41: 4 Dane’s Abr. 500.
    Suppose the statute had gone no further than the term inheritance of land, and a man had died seized and possessed of the second floor of a large and permanent building in a city, would it pass to all the sons by the word land? Surely not. Yet the intestate had an absolute and unconditional estate in it, to him and his heirs forever; that is, a fee simple; therefore, the legislature intended to embrace other estates in fee simple, besides inheritances of land.
    But suppose the last words had no definite signification. Suppose no estate descended to the eldest son by the old law, but what would pass by the word land; still these words, other estate in fee simple, could create no rational doubt as to the meaning of the legislature, for it is not uncommon for the legislature, in over caution, to use more words than are strictly necessary. In this very section we might leave out half the words and retain the full meaning.
    Would it not be an outrageous rule of construction to catch at general words and apply them to a subject not within the mind of the legislature; more especially, when those words have a clear and rational application to the subject before them. What was the subject? Estates of inheritance and nothing else. What the object? To make the rule more general, to divide the inheritance amongst all the sons. To this subject and this object every word in the section has its rational application.
    Rutherford (2 Inst. 315) says, when words are doubtful, the first rule is to apply them to the subject that was in the mind of the speaker or writer* for we are sure, on the one hand, that he applied them to that matter, and can, on the other hand, have no reason for thinking that he intended any thing different from it, much less inconsistent with it. Yet it is gravely argued, that the legislature intended to change the common law in this, to wit, to make that an estate of inheritance, which was not so before. And this intention is attempted to be forced upon them by catching at mere words, without regarding the subject matter, which has been condemned as a rule of construction ever since the days of Lord Coke, for, says he, it is like sticking to the bark of a tree.
    The great point of controversy is-to find the mind, the meaning of the legislature. This is the end and object of all rules of construction. 11 Rep. 73: 1 Black. Com. 59: 6 Bac. 384: 2 Ruth. Inst. 301.
    We insist the legislature, by this section, intended to abolish primogeniture, and to divide the property, which before had descended to the oldest son, amongst all the sons. The other side agree with us as far as we go, and insist,, moreover, that the legislature intended to change the common law in another important feature, to wit, to make some property descend to all the sons, which had not before descended to any. We.deny that any such intention as this last can be found in the statute. If general words could be found, they must be applied to the subject matter. Instances of this kind are innumerable. 32 Henry VIII, ch. 6, sec. 1, was enacted in these words: “Every person having any manors, lands or he-reditaments shall have power to devise the same.” “Every person” would include idiots, lunatics, femes covert, &c.; but no man ever dreamed that the legislature intended to enable such persons to devise lands. 1 Blackstone’s Com. 61, gives an instance, upon the same principle, from the civil law, of the sick man in the ship. Rutherford (2 Inst. 236) says, general words are to be restrained by the end which the legislator had in view. The best construction of a statute is, to construe it as , n i i i near the rule and reason, ot the common law as may be; that is, to change the common law no further than the legislature intended to change it. 6 Bacon, 483: 1 P. W. 252: Plow. 365: 1 Saun. 240: 10 Mod. 245: 2 Inst. 148, 301.
    Blackstone (1 Commentaries, 87) directs us to consider the old law, the mischief and the remedy, and to construe the statute accordingly. 6 Bacon, 383: 3 Rep. 7: 1 Inst. 272. By the old law, estates descended to the oldest son. The mischief was, it accumulated property in his hands, contrary to the spirit and policy of a republic, therefore, it was divided amongst all the sons. An estate in husband and wife is not within the old law, nor the mischief; therefore, the remedy is not to be applied to it. By the old law, when either the husband or wife died, the estate survived to the survivor, and did not descend to the oldest son; it did not accumulate property in his hands, therefore, it was not against the spirit of equality of a genuine republic.
    But this whole statute, taken together, affords an argument even more conclusive.
    We think the legislature have been unusually intelligible., explicit and unambiguous in the 2d section; for they explained what they intended to do, and gave the reason for it, and all the language employed by them has a direct and rational bearing upon that object. In the 6th section, they have been equally explicit in showing what they had not embraced in the 2d, to wit, the right of sur-vivorship in joint tenancy. The legislature could not have told us in plainer words, that they did not intend to embrace joint tenancies in the 2d section, than they have told in the 6th section. For if the 2d section embraced joint tenancies, the 6th was wholly idle, nugatory and unmeaning, except the proviso in favor of trade, which would have been attached to the 2d section. It is a safe and universal rule of construction to construe one part of a statute by another. 6 Bacon, 380: 1 Inst. 381: 1 Plow. 365: 11 Mod. 161.
    Let us see the force of this point. The argument is, that the 2d section abolished the joint estate between husband and wife, and abolished the right of survivorship between them. This argument is founded upon the general words “any estate of inheritance of lands, or other estate in fee simple.” They say the wife had an estate of inheritance in this land, and therefore it shall descend to her heirs, and not survive to her ^husband. Now, if this was true as to the joint estate in husband and wife, it would be more emphatically true of other estates of joint tenancy. The legislature, itself, in the 6th section, show that they did not intend to embrace joint tenancies in the 2d section, and it follows a fortiori, that they did not intend to embrace the joint estate of husband and wife. It will surely be admitted, that if the legislature had abolished survivorship in joint tenancies by the, 2d section, they were wholly ignorant of it; if they had known it, they never would have gone into solemn legislation upon the subject in the 6th section. These two sections taken together, show with great clearness the meaning of the legislature upon this whole subject; also the liberal and correct views of policy by which they were governed. They understood the nature of an estate of inheritance; of a joint tenancy, and also the nature of a joint estate in husband and wife.
    No argument can be framed upon the supposition of ignorance in the legislature which enacted this law. Such an argument would be most unfounded, for they show upon the face of the act, the most profound and accurate discrimination upon the whole subject; the definition of an estate of inheritance, and of a joint tenancy, were known to every tyro in the law. They knew equally well the nature of a joint estate in husband and wife. That husband and wife were but one person and took one estate, not as joint tenants, but as a corporation. They chose not to embrace such an estate either in the 2d or 6th section, and they had many reasons ior it.
    1, It did not contravene their policy, for when it descends, upon the death of the survivor, it goes to all the sons.
    2. The families were not different as with joint tenants, but most usually, they had one family and the same set of heirs to each.
    3. When husband and wife are grantees in a deed, and one dies, the grantee is not dead; only half that person to whom the estate was granted is dead, therefore, it does not descend, but remains as it was before, for the grantee (survivor) is yet living. No new estate vests in this survivor; he or she owned the whole before, and every part of it, that is, during the coverture there was but one seizin, and one estate; one person, to wit, man and wife, were seized of the whole; upon the death of one, there is still the same seizin of the entire estate. So it cannot go in descent, for there is an owner of the whole still living.
    The laws of England, and the laws of America identify and define man and wife as one person, if this unity should be destroyed, it would be impossible at once to foresee all its consequences through the multiplied relations of social life.
    In joint tenancy, two persons are seized of one estate. They may sever it at any time that either may choose to do so; each has a separate seizin in himself of one half of the whole, each has paid out of his private pocket one half the price, and their heirs are different; therefore, survivorship ought to be abolished.
    How different, how wholly different is the case of husband and wife. The donor looks upon them with equal affection. The parents on both sides mutually adopt them as one child. They themselves, by this mysterious and intimate union, feel identified as one person. In pinety-nine cases out of one hundred, where estates are conveyed to man and wife, the object and intent of the , donor is, that the survivor shall take it; therefore the le legislature of 1784 did not embrace the estate of husband and wife. They left the law, as to that, as they found it; as it had stood since the time of my Lord Coke, and as it yet stands.
    
      W. E. Anderson, for defendant in error.
    1st. The objection to the certificate of acknowledgment is, that it does not purport to be a certified copy from the records of the court. The judge, under his private signature, gives a certificate that he examined the jeme, but the law requires it to be a judicial act, evidenced by the records of his court. If the plaintiff has mistaken this objection, and the court be of opinion that the certificate of the clerk is to be considered a certified copy of the record; then it is argued with confidence that the record is defective. If what appears on this deed be the same as that on the record of the acknowledgment of this deed, then a copy of that record, endorsed upon any deed, from Taul and wife to Deckard, for any land in any county in this State, will as well authorize its registration, as the present one.
    • 2d. It is admitted, that by the English law a conveyance to husband and wife, created a species of joint tenancy, one incident of which was survivorship. But it is contended for the lessors of the plaintiff, that this rule of the English law is superseded by our statute of April 1784, ch. 12, sec. 3. The words of this act are, “that if any person dying intestate, should at the time of his or her death, be seized or possessed of, or have any right, title or interest in, or to any estate or inheritance in land, or other veal estate in fee simple, and without issue, such estate or inheritance shall descend, &c.°’ These words plainly, unequivocally and precisely embrace tins case, and the mind of man could never have entertained or conceived of any doubt on the question, without looking to something extrinsic of this act. 1 Scott 
      272, 3. If she had any right, title or interest, it descend" ed and vested, by force oí this statute, in her heirs. Now it is clear she had a right or interest vested in her by the deed, and this interest is distinct from her husband; this is clearly proved by Lord Coke, 5 Institute 681: 4 Institute, 342: and the case of Greneley, 8 Coke’s Rep. 71, 72, &c.
    The position this court has taken is, that they will follow a plain statute, which is constitutional; and the practice of departing therefrom, even to avoid a hardship which may arise from a strict adherence, has been properly repudiated. Patton vs. M’CIure, Mart. and Yerg. 345: Cocke and Jack vs. M’Ginnis, Mart. and Yerg. 361: Washington vs Trousdale and Banks, Mart. and Yerg. 385.
    The several decisions to be found in our sister States, which were cited against the lessors of the plaintiff, are founded upon the statutes of the respective states where made; all of which are clearly distinguishable from our statute of 1784.
    
      Geo. S. Yerger, in reply,
    enforced the positions assumed by Mr. Rucks.
   Catron, Ch. J.

delivered the opinion of the court.

The court is of opinion, that the statute of descents of 1784, does vest in the heir every estate in fee simple that passes from any person who dies seized, whether such estate be of inheritance or not at the common law, as was holden by Judge Catron, in Campbell vs. Taul, (3 Yer. 561.) This is admitted on the part of Taul’s devisees, but it is insisted, that an estate vested in husband and wife is a single, indivisible title; that the husband and wife are known in law as only one person, that they are a unit by the common law; and if an estate be granted to A and Ms wife, and to B, the husband and wife take one moiety, and B the other: and when either husband or wife die, the longest liver takes the estate.

That the estate" goes to the longest liver, and the heirs of the longest liver, by the common law, is admitted by the other side; but that this is grounded on a rule of sur-vivorship of a peculiar character, is insisted, and that when the wife died, her estate did pass, not to the husband, but by the statute of descent to the wife’s heirs. If any title passed by the death, it is admitted, the statute of descents cast it on the heir.

To prove the wife had a descendable estate, Greneley’s case, (8 Rep. 243), is mainly relied upon. The question there was, whether the husband could do any act during the coverture, to prejudice the wife’s title. The statute of 32, Hen. VIII. having declared that no fine, feoffment, or other act or acts hereafter to be made, suffered or done, by the husband only, of any manors, lands, tenements or hereditaments, being the inheritance or freehold of his wife, during the coverture between them, shall in any wise be or make any discontinuance, or be prejudicial or hurtful to said wife or her heirs, &c.: and the court held, “that this joint estate was within these word, (the inheritance or freehold of his wife,) for she hath a freehold and inheritance in the land, although she hath not the sole freehold or inheritance.” And again, in the same case it is resolved, “but if the husband, aliens, and afterwards the wife is divorced, causa precontracts, or any other divorce which dissolves the marriage a vinculo matrimonii, then)the wife during . the husband’s life may enter,” &c.

The effect of a deed for land to husband and wife has been settled beyond controversy by the common law for) centuries. They take but one estate, as a corporation.' would take, being by the common law deemed but one person; and if one die, the estate continues in the survivor, the same as if a corporator were to die. Coke on Lit. 187, b: 2 Blac. Com. 182: 2 Kent’s Com. 112. And if an estate be conveyed to husband and wife, and to a third person, the husband and wife only take the Qne rao¡ety.5 an(j t¡:e third person the other moiety. Co. on Lit. 187, a. Nothing passes on the death of either the husband or wife, that may first die,'but by a condition in law, the longest liver takes the entire estate. Coke on Lit. 234, b. Such has been the recognized rule of the common law in the American courts. Thus in Massachusetts, (5 Mass. Rep. 521,) Jacob Hearsy conveyed in fee to Thomas Hearsy aDd Mary his wife; Mary died in 1801, the husband living. In 1804, his will devised the lands to Sylvanus and Cyrus Hearsy in fee. Shaw and others were the heirs of Mary, the wife, and as such, claimed a moiety of the premises as tenants in common with the devisees of the husband, relying on the statute of Massachusetts, changing joint tenancies into tenancies in common; in effect,- cutting off survivor-ship in certain cases.

The court declared that joint tenants, held by moieties, not entireties, as did husband and wife, that no severance could be had by either husband or wife, and that the alienation of the husband would not defeat the wife’s title to the whole, if she survived him; that the conveyance to husband and wife is, in legal construction, a conveyance but to one person; and that Thos. Hearsy, on the death of his wife, took the whole estate, wherefore the title of his devisees was sustained. The cause was like the one before the court in all its features.

So in New York, (16 John. Rep. 115), Mary Stevens, widow, married Justus Blanchard, holding lands in fee under the will of her former husband. Blanchard and wife conveyed the lands to Philo Ruggles, who re-conveyed to Blanchard and wife jointly. Blanchard survived his wife, and the question was, whether he became entitled to the whole estate which they both had in the farm, or only to a moiety of it. The court said, “it appears to be well settled, that if an estate he given to a man and his wife, they take neither as joint tenants, or tenants in common; for, being considered as one person . , , , ° , . f m law, they cannot take by moieties, but both are seized of the entirety; the consequence of which is, that neither of them can dispose of any part without the assent of the other, but the whole goes to the survivor.” 2 Black. Com. 133: Coke on Litt. 187: 2 Vern. 120, are recognized as furnishing the settled rule of property.

The legal effect of this description of conveyance is declared by Chancellor Kent in Rogers vs. Benson, (5 John. Ch. Rep. 427,) with his usual accuracy. He says, “The husband and wife in this case were not properly joint tenants, or tenants in common, for they were but one person in law, and could not take by moieties. They were both seized of the entirety, and neither could sell without the consent of the other, and the survivor would take the whole. The same words of conveyance, which would make two other persons joint tenants, will make the husband and wife tenants of the entirety. This is a nice distinction laid down in the old books, and which has continued to be the law to this day, and the provision in our statute that no estate in joint tenancy shall be held under any grant or conveyance, unless the premises were expressly declared to pass, not in tenancy in common, but in joint tenancy, does not reach this case, for the estate of the husband and wife is not a joint tenancy.”

The same has been holden in Virginia, in Thornton vs. Thornton, (3 Randolph’s Rep. 179.) John A. Thornton made his will, giving to his brother-in-law, Francis Thornton, and Jane, his wife, certain lands in fee, and died. Jane Thornton died in the lifetime of her husband, and her children and heirs sued the husband for the moiety of the land, insisting it descended to them on the death of their mother.

The court held that an estate given to the husband and wife is not a joint tenancy, and therefore not affected by the act of assembly concerning joint rights and obliga-lions. In such an estate each party takes the entirety, and the survivor takes the whole, not by survivorship, but by virtue of the original conveyance.

In May, 1833, the same question came before the Supreme Court of Kentucky, in the cause of Rogers vs. Grider, (published in the Commonwealth newspaper of 29th June, 1833.) Robert Moore conveyed a tract of land, adjoining Bowling Green, to his son-in-law and daughter, Martin Grider and wife, which was afterwards sold under executions against Grider, in his lifetime, and Rogers became the purchaser. After Grider’s death, Mrs. Grider filed her bill against Rogers, claiming, first, the whole of the land, and if she was not entitled to the whole, then to one moiety to be allotted to her in severalty, and dower out of the other moiety. It was insisted for the purchaser, that Grider and wife took as joint tenants, and that by the statute of Kentucky destroying joint tenancies, Mrs. Grider could only take a moiety. The court, after stating what the ancient common law was, declare, “that one of the incidents of a joint tenancy was the right of each of the joint tenants to alienate his interest, thereby to sever the joint tenancy and render his co-tenant in common with the alienee; whereas, it is agreed by all the authorities, that neither husband or wife can, by common law, make any alienation of an estate conveyed to them during coverture, so as to affect Jhe entire right of the other on his or her surviving. The unity of person subsisting between man and wife, in legal contemplation, prevents their receiving separate interests. The estate of joint tenants, is an unit made up of divisible parts, subsisting in different natural persons. The estate of husband and wife is an unit, not made up of any divisible,parts, subsisting in different natural persons, but is an indivisible whole, vested in two persons, who are actually distinct, yet who, according to legal intendment, are one and the same. On the death of hushand or wife, the survivor takes no new estate or interest, nothing that was not in him or her before. It is , -i • iii. a mere change Jn the properties oi the legal person holding, not of the estate holden.”

The result of the British and American decisions is the same, without an exception,” that husband and wife take one indivisible estate, which continues, after the death of either natural person, the same estate in thé survivor; consequently, the deed on which this controversy arises has the same legal effect as if it had been made by Deckard, to Taul and wife, to hold to them jointly and inseparably, during their joint liv’es, and on the death of either, that thé estate should go to the longest liver, and his or her heirs forever.

No estate passed on the death of Mrs. Taul to her heirs-, for thé statute of descents to operate upon; nor has the statute any bearing on the true and only question in this cause, the character of the title Mrs. Taul died seized of; and, in supposing it had, Judge Catron was clearly mistaken in the opinion he expressed in Campbell vs. Taul, at Sparta. He took itforgranted thatMrs. Taul held a fee simple estate; whereas; it had annexed to it, a condition in law, that it should continue over to the longest liver. Unexplained, and without careful examination, Greneley’s case is calculated to lead to error. It is therein resolved, that after the divorce, the wife may enter, as a joint tenant, with the husband, (8 Reports, Í45) but this, when examined, proceeds upon reasons too plain to be controverted. Lord Coke refers to a divorce, a vinculo matrimonii, which declares the marriage null and void, and, in England, is so declared by the spiritual court. The causes of divorce are such, in England, as existed previous to, and prohibited the marriage, and made it unlawful and void from the beginning. The issue of such marriage are bastards; the divorced woman is taken as never having been married; and for the personal property in the husband’s hands, that he obtained from her, she may bring detinue; and any conveyance of lands made jointly during the coverture to , the supposed husband and wile, vested m laet m joint tenancy, as in other cases. 1 Bl. Com. 440: Jac. L. D. Divorce. The spiritual court having declared a marriage void, the common law courts generally take no notice of the fact that a marriage had ever existed; yet this general rule had the exception made to it as, declared in Grene'-jey’s case, that the statute of 32 Henry VIII. protected the' wife' de facto against the acts of the husband, done before the divorce was pronounced, as where he had sold and parted with the possession of the wife’s lands.

Our statute (1799, ch. 19) confers the jurisdiction to grant divorces on the common law courts, and the divorce may be grounded on causes arising subsequent to the marriage; but the 10th section of the act makes it the duty of the court to decree to the divorced wife such portion of the real and personal property of the husband as is consistent with the nature of the case, and order it to be partitioned to her. No considerations can be drawn from the doctrine of divorces, in anywise coming in conflict with the established principles giving effect to joint deeds, to husbands and wives, as single and indivis-ibles titles.

The next question is, has a conveyance of land, proved and registered, any different effect by force of the act of 1715, ch. 38, than a feoffment, or bargain and sale grounded on a valuable consideration had, before the act was passed? It declares no conveyance for lands shall be good and available in law, unless proved and registered; and that all deeds, so done and executed, shall be valid and pass estates in lands, without «livery of seisin, attornment, or other ceremony in the law whatsoever.

The ceremonies referred to, and which, by the common law, were necessary to vest a title in the grantee, are stated by the court in Thomas vs. Blackmore, (5 Yerg. Rep. 124) and will not be repeated. The act of 1715 dispensed with the necessity of an actual delivery of possession to the purchaser, and.with the assent of the tenant, if any, to the change of landlords; nor is it necessary the deed should be grounded on a valuable consideration, to give effect to it by force of the statute of uses; for all these, the registration is a substitute, (2 Tenn. Rep. 264,) and the title vests without their observance; but when vested, the effect of- the deed, and the character of the title tafeen, is the same as a deed of bargain and sale, or feoffment, would have conferred before the passage of the act of 1715. The court is therefore of opinion, that judgment on the case agreed must be entered for the defendants.

G-REEN, J. gave no opinion.

Judgment accordingly.  