
    Maria Stelz, Pl’ff, v. Minnie Schreck, Impl’d, Deft.
    
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 17, 1891.)
    
    1. Tenancy by entirety—Deed to husband and wife.
    The effect of a deed conveying real property to a husband and wife jointly is to vest each of the grantees with the entirety, and the right of absolute ownership in the survivor.
    3. Same—Effect of divorce upon.
    If, thereafter, the husband procure an absolute divorce, the relation on which the seizure by entirety is based is thereby abrogated, and the parties will become tenants in common of the land.
    Appeals and motions for new trial by each party from a judgment directing the recovery of dower by the plaintiff in an equal undivided half of certain real estate, situated on the southerly side of Fiftieth street, easterly of Third avenue, in the city of New York.
    
      Geo. H. Kracht, for pl’ff; Edward S. Johnston, for def’t Schreck; S. Jones, for guardian ad litem.
    
    
      
       Affirming 33 UST. T. State Rep., 133.
    
   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, Chandler v. Cheney, 37 Ind., 391. As to these resuite of the conveyance, the law has been uniform in its determinations.

After this conveyance had in this manner taken effect, William 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 seizin 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 R S.. 6th ed., 157, § 61. And forfeited every jointure, devise, and pecuniary provision made for her in lieu of dower 2 R S., 6th ed., 1122, § 15. Whether the seizin 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 seizin 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 seizin 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 seized 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 the persons, creating the only estate permitted under its language, of a tenancy in common. It is an incidental consequence resulting from the separation of tne grantees into two legal and distinct individuals.

This subject, under similar circumstances, was examined in Ames v. Norman, 4 Sneed (Tenn.), 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 Bishop on Marriage and Divorce, § 716. While the principle cannot be affirmed to be free from doubt, it seems to legally follow from the radical change made in the relatoins 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 divorce it might have been entirely pertinent in the way of excluding the guilty wife from all interest in the land. Renwich v. Renwich, 10 Paige, 421. But upon this trial that could not be done. The offer came too late.

j 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.

Van Brunt, P. J., concurs.  