
    MEEKER v. WRIGHT.
    
      N. Y. Court of Appeals ;
    February, 1879.
    [Reversing 11 Hun, 533.]
    Husband and Wife.—Tenants in Common.—Tenants by the Entirety. —Married Woman’s Acts.—Deed.—Mortgage.
    
      It seems, that a deed of lands to husband and wife, which contains no statement as to the manner in which they shall be held, makes them tenants in common, and not tenants of the entirety thereof; for under the statutes for married women, the interests of the husband and wife are no longer identical, but separate and independent.
    Where a husband conveyed directly to his wife, his interest in land held by them in common, and also personal property, and the wife gave him a bond and mortgage for the purchase-money thereof, —Held, that such bond and mortgage was valid.
    Appeal by plaintiffs from a judgment of the genera] term of the supreme court in the third judicial department, affirming a judgment in favor of defendants.'
    This action was brought by Celestia Meeker and Henry Meeker, administrators, with the will annexed, of Samuel Daily, against Cordelia Wright and others, to foreclose a.mortgage made by the defendant, then Cordelia Daily, to Samuel Daily, her husband, upon lands in Chenango county, this State.
    By deed dated September 22, 1865, one Clarissa Smith (the mother of the defendant Cordelia) conveyed a portion of the premises described in the complaint in this action to Samuel Daily and Cordelia Daily, and on the 1st day of April, 1870, Samuel Daily executed and delivered to Cordelia a deed purporting to convey to her, in consideration of $1,500 (the receipt of which he acknowledged) the premises above referred to, with another parcel of ten acres “and all his right and interest in the personal property then or thereafter to be placed on the premises; ” and on the same day Cordelia executed and delivered to Samuel Daily the bond and mortgage in question, to secure the payment of $1,000, part of the purchase-money of the premises described therein. During the life of Samuel, . the defendant Cordelia, by payments at various times, reduced the amount secured so that at the time of the trial there was unpaid only the sum of $500, and interest from January 2, 1873. Samuel Daily died in September, 1872. A variety of defenses were set up, and, among others, it was alleged that at the time of these various transactions Cordelia and Samuel were husband and wife. The trial court considered the defense valid and dismissed the complaint, and the plaintiffs appealed.
    ' The supreme court at general term affirmed that judgment, and held that the deed from the husband to his wife was void at law, because made directly to her, and also because they held the land as one person. That even in equity it conveyed only the interests of the husband and wife during their joint lives, and that no greater interest passed to him by the mortgage by his wife..
    From the judgment entered on this decision, the plaintiffs again appealed.
    
      O. U. Kellogg, for plaintiffs, appellants.
    
      William II. Hyde, for defendants, respondents.
   Danforth, J.

[After stating the facts.]—The deed from Clarissa Smith to Samuel Daily and Cordelia Daily was for a consideration, found by the trial court to be good and valuable, stated in the deed to have been $1,000, paid by the grantees, and which, as the undisputed evidence shows, moved from each. The deed, as the trial court found, and as appears from the instrument itself, contains no statement as to the manner in which the grantees should hold the lands described in it. Upon this state of facts it is plain

that the grantees became tenants in common of the premises, for the statute expressly provides that every estate granted to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be a joint tenancy (1 R. S. pt. 2, tit. 2, art. 2, § 44), and from this it would follow that the deed from Samuel Daily to Cordelia Daily, conveying, as it does, his interest in the lands, would furnish an abundant consideration for the bond and mortgage. In addition to that, however, his deed conveys to her ten acres of other lands, the whole of which, for aught that appears, he owned individually. The value of the lands conveyed is not found, but there is no reason for assuming that it was less than the sum stated in the deed (Jackson v. McChesney, 7 Cow. 368; Wood v. Chapin, 13 N. Y. 509).

But the learned court also finds as a fact, that at the time of the execution of the several conveyances, and the bond and mortgage above referred to, Samuel Daily and Cordelia Daily were husband and wife, and therefore concludes that the statute has no application and that they became tenants of the entirety of the premises conveyed to them by Clarissa Smith; that for the same reason the deed from Samuel to Cordelia was void at law, and therefore that the mortgage, so far as its consideration came from the real estate, is void. This view was sustained by the general term, but is, I think, erroneous.

At the time of the execution of the deed from Clarissa Smith to Samuel Daily and Cordelia Daily, the statutes of 1848 and 1849, for the more effectual protection of the property of married women, and those of subsequent years—1860-1862—concerning the rights and liabilities of husband and wife, were in force.

By that of 1858, chapter 200, as amended in 1849, chapter 375, any married female may take by grant, &c., from any person, other than her husband, and hold to her sole and separate use real and personal' property, and any interest or estate therein, and the rents, issues and profits thereof, in the same manner and with the like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband, nor be liable for his debts. It was argued, however, that inasmuch as an unmarried woman never could convey to her husband, she having none (White v. Wager, 25 N. Y. 333), or hold lands with him (Goelet v. Gtori, 31 Barb. 314), and as this statute in terms clothed the wife with such capacity only as an unmarried woman had, therefore the married woman could neither convey to her husband or hold lands as tenant in common with him. But the act of 1860, chapter 90, entitled, an act concerning the rights and liabilities of husband and wife, is not open to this criticism. Without adverting to other portions of it, it is enough to call attention to its enactment “ that the. property, both real and personal, which comes to any married woman by grant, and the rents, issues and proceeds of all such property, shall, notwithstanding her marriage, be and remain her sole and separate property and shall not be subject to the control or interference of her husband, or liable for his debts.” Now, the conveyance by Mrs. Smith was a grant to Cordelia Daily, and none the less so because Samuel Daily was co-grantee, and, as we have seen, except for the marital relations between them; they would be, under the common law and statute, tenants in common. As such she would be considered severally seized of her share, thus having a distinct freehold, wholly independent of Samuel Daily, and in no privity with him she could sell and convey her share ; either could compel the other to a partition, and each would be entitled to an account from the other for a due share of the rents and profits of the estate. There is here, then, a grant of property, with rents, issues and profits thereof, to a married woman. The common law gives to the co-grantee all the rents, issues and proceeds of the entire property, permits him to mortgage or even sell, to the entire exclusion of the other grantee, during her lifetime, and permits the same to be taken by his creditors to pay his debts, simply because this other grantee or co-tenant is a married woman and his wife. ' But the statute says all this shall, notwithstanding her marriage, be and remain the sole and separate property • of the married woman, and shall not be subject to the disposal of her husband, or liable for his debts. The case is within the letter of the statute and within its spirit; it is not excepted from its provisions. The statute and the rule of the common law cannot stand together, and the latter must give way. It never stood upon truth or reason, but on a fiction. It ignored the civil existence of the wife, and merged it, with all her rights, in that of her husband, and can be sustained, if at all, only by an idle and unprofitable refinement. Under the statutes the interests of the husband and wife in property are no longer identical, but separate and independent.

In the case of Matteson v. New York Central R. R. Company (62 Barb. 373), Judge Mulliit, delivering the opinion of the general term, says, “The husband and the wife are for all legal purposes no longer one person,” and the construction which led to this general observation has been applied in so many cases, that the conclusion arrived at in the case before us may be deemed well supported by authority.

In Power v. Lester (17 How. Pr. 413; S. C. on app., 23 N. Y. 529), the case disclosed a bond secured by mortgage upon certain real estate given by an unmarried man to a single woman. The parties after-wards became husband and wife, and together executed a mortgage to one Lester upon the same and other premises. In an action to foreclose the first mortgage, the last mortgagee claimed—(1) that the marriage of the plaintiff with the defendant extinguished the debt secured by the bond and mortgage ; and (2) that the wife could not sue the husband on the bond,, and consequently could not maintain an action to foreclose the mortgage; bat the trial court held that “the statute (of 1848) virtually repeals the common law rule” (17 How. Pr. 415, 416), and this court, in opinions delivered by Judges Jambs, Comstock and Djemio, affirmed the judgment rendered by the special term, Judge James saying, “ It was a general rule of the common law that when a man married a woman to whom he was -indebted, the debt was thereby released because husband and wife make but one person in law, which unity of persons disabled the wife from suing the husband.” “In this State the Code and the acts of 1848 and 1849, have completely swept away the common law rule which gave the husband rights in and control over the property of the wife.” “Marriage no longer operates upon the property, but only upon the person.” It will be seen that although the statute does not, in terms, abrogate the common law rule referred to, yet the court held that it “makes no distinction in favor of the husband,” and that there was nothing in the language of the statute, or its general policy, which would justify the discrimination suggested. The questions presented were very fully considered in the case cited in the supreme court, and in this court, and the conclusion ' reached in the case before us is only a little further on in the same road. Many recent decisions by this court are in the same spirit and to the same end, and seem to render a further discussion unnecessary (Ballin v. Dillaye, 37 N. Y. 35 ; Bodine v. Killeen, 53 Id. 93 ; Rowe v. Smith, 45 Id. 230; Baum v. Muller, 47 Id. 577; Cashman v. Henry, 75 N. Y. 103.

The various cases cited by the learned counsel for the respondent, in support of the decision of the court below, have not been overlooked. Those earlier than the statutes referred to have no application, if the rule of the common law has been changed by legislation. Torrey v. Torrey (14 N. Y. 430), was,, it is true, decided in 1856, and the effect of a conveyance to husband and wife was considered; the court reasserted the doctrine of the common law, holding that the grantees were seized not as joint tenants or tenants in common, but of the entirety; both judges, however, who delivered opinions, were careful to state “ that the case is not influenced by the acts of 1848-1849, for the protection of the property of married women, for the conveyance was made prior to the first of these acts,” —Deeio, p. 432—Hubbard, p. 433,—and the decision itself was rendered before the act of 1860, which I have cited. Goelet v. Gori (31 Barb. 313) was at special term, and can hardly be considered as an authority upon the point now before us. The action was to charge husband and wife, lessees, upon their covenant to pay rent, and the learned court, without any discussion of the subject, dismissed the question by saying, “ The acts of 1848 and 1849 are not intended to enable married women to take and hold property jointly with their husbands, but to take and hold and dispose of property as if they had no husbands.” This case was followed in Farmers’ and Mechanics’ Bank v. Gregory (49 Barb. 162), and accepted as authority without discussion. In 1871, the same question was presented in the case of Miller v. Miller (9 Abb. Pr. N. S. 444), and the cases above cited were submitted to and followed as controlling the court at special term ; but except for those decisions it is plain the court would have held differently, for the learned judge says, “ I was inclined to the opinion that by these acts a married woman was enabled to take and hold real property or any interest or estate therein, the same as if unmarried; which would include the right to take and hold under a deed to her and another person, and that other person might be her husband; and that she was by them released from all the common law rules in regard thereto, and that, under a deed to husband and wife, by virtue of the statute, they would become tenants in common the same as other persons.”

In Beach v. Hollister (3 Hun, 519), the same question was before the court and very summarily disposed of by a divided court, the majority, by Gilbert, J., saying, “ Those statutes operate only upon property which is exclusively the wife’s, and were not intended! to destroy the legal unity of husband and wife, or to change the rule of the common law governing the effect of conveyances to them jointly,” and citing the cases of Goelet v. Gori, Farmers’ Bank v. Gregory, above referred to, and Freeman v. Barker (3 T. & C. 574). This case was decided by the supreme court of the third department, on the strength of Goelet v. Gori, and Farmers’ and Mechanics’ National Bank v. Gregory, the court saying, “ The question now raised must be considered res adjudieataH It will be seen, then, that, so far as authority goes, it all rests upon the special term case of Goelet v. Gori. I have been able to find no reason for its support.

If this view is correct, then, by the deed from Clarissa Smith to Cordelia Daily and Samuel Daily, each became tenant in common with the other, and as such each had a valuable interest which could be conveyed, and therefore the deed from Samuel Daily to Cordelia Daily did convey an estate or interest of value, and supports, as by a good and valuable consideration, the mortgage, unless by the same rule of the common law the deed is wholly invalid by reason of the marital relation existing between the parties. It may be conceded that this would be so in law where neither husband nor wife could take from the other any more, as the books say, “ than a monk, who is dead in law and considered as no person.” The courts, however, rejected this as early as 1794, where, in Firebrass on the demise of Jane Symes, widow, v. Pennant (2 Wils. 254), the King’s court at Westminster considered whether a grant “by a lord of a manor to his wife be good in law or not.” The question was thought quite new, and although the trial was postponed to enable counsel to search for authority, none could be cited “ to show whether such a grant was good or bad,” and the court reluctantly held that it was not good, and gave judgment for the defendant, and so it has been to this day; but the doctrine is very technical and has been easily and frequently evaded, and during the same period it has been as uniformly held that such a conveyance may be sustained in equity, where the wife has been regarded as a person having a separate existence, separate rights, and a capability of holding separate property, and, unless wholly without consideration, a conveyance defective in consequence of the common law rule, is upheld (Shepard v. Shepard, 7 Johns. Ch. 57 ; Hunt v. Johnson, 44 N. Y. 27).

The transaction, then, which resulted in the execution of the bond and mortgage by the respondent is to be regarded as valid within plain principles of equity. These principles have, indeed, been recognized and applied by the trial court in this case, for the defendant sought not only to defeat a foreclosure of the mortgage, but to recover back the money paid by her upon it. She failed in this. The same instrument by which Samuel Daily undertook to convey the land, conveyed also personal property. The mortgage secured the price of both, and each as much as the other formed the consideration for its execution. The trial court and the general term hold the conveyance operative and the mortgagé valid, so far as the personal property is concerned. We think the mortgage valid as to both. The same result will follow, even if the .deed from Clarissa Smith to Samuel Daily and Cordelia Daily did not make them tenants in common. If, as the court below held, they by virtue of it became tenants of the entirety, then, by the common law, Samuel Daily had the right to alienate in fee his share, subject only to the wife’s right of survivorship, and the further right to sell, lease or mortgage the entire property for the joint lives of himself and his wife (Grute v. Locroft, Croke Eliz. 287; Barber v. Harris, 15 Wend. 616 ; Jackson v. Suffern, 19 Id. 174). He had also the right to the possession of the property during the same time, and to the receipt of the rents and profits thereof; and all this he might do without his wife’s consent and even in spite of her, opposition ; or with her consent, she joining in the conveyance, give to any one a title in fee ; indeed, if. they had conveyed to a third person, although expressly for the purpose of having that third person convey to her, her title so obtained would be good in law and equity, and this would be so, although in the deed it had been written that the sole purpose of such conveyance was to vest in the wife a title in fee simple. No one attacks her title now; no one has disputed her right under the deed, or to the possession and enjoyment of the premises, the annual use of which is conceded to be §135. This she acquired by the deed. It was valid "and efficient for that purpose (Sheldon v. Clancy, 61 Barb. 475 ; Jaques v. Methodist Episcopal Church, 17 Johns. 548). But for this use no allowance has been made, and to what extent, if not to the full sum stated in the bond and mortgage, she should be required to pay, can be better determined upon another trial.

It was also found by the trial court “ That the consideration of the mortgage was in part the price of personal property transferred by Samuel Daily, and that the mortgage was valid to the extent of its value. But it is also found that besides interest an amount has been paid upon the mortgage greater than this value, and that the payments should be so applied rather than on the price of the land.” This finding was excepted to. I have carefully examined the evidence, and am unable to find any in regard to the items of personal property transferred at the time of the execution of the deed, or placed on the farm afterwards, except a general description, and I find no evidence as to its value. There is testimony concerning personal property sold by Samuel Daily from the farm, and the price it brought, but this was in 1871, and has no tendency to show what or how much personal property the defendant received by virtue of the deed or to what extent it formed the consideration of the mortgage. The exception, therefore, was well taken.

It is, however, objected by the respondent’s counsel, that the acknowledgment of the mortgage by Mrs. Daily is insufficient, because the certificate' does not show that it was taken separate and apart from her husband and executed without fear or control, and the general term having come to the conclusion on other grounds that the complaint should be dismissed, decline to pass upon that objection, but whatever its merits may be, it is not available to the defendant, for the complaint alleges that the defendant did “duly acknowledge and deliver the mortgage,” and this the defendant not only does not deny but expressly admits by her answer. The allegation must therefore be taken as true.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Raballo and Miller, JJ., concurred.

Church, Ch. J., Folg-er, Andrews and - Earl, JJ., concurred in the result, on the last ground stated in the opinion.

NOTE ON THE EFFECT OF THE MABBIED WOMEN’S ACTS, ON TENANCY OF HUSBAND AND WIFE BY ENTIRETY.

The following cases indicate the line of decision in other States, on this question.

Hoffman v. Stigers, 28 Iowa, 302 (Partition, 1869, opinion by Wright, J.). In 1863, a decree of partition gave to a wife and her husband certain land. The next year the wife died, leaving the husband and their children. The husband, in 1867, conveyed the entire premises by quit-claim to the defendant in this suit. The plaintiffs, the children and heirs of the wife, claimed by inheritance the undivided portion. The defendant insisted that the husband and wife took as tenants by- entirety, and that, upon the wife’s death, her title was extinguished. Held, that under the law of the State by which the wife can take the title to real property in her own name, and by gift or grant from the husband, even without the intervention of a trustee, and may convey her interest in real estate in the same mañuelas other persons—joint tenancies and in entirety are not favored, and conveyances to two or more in their own right create a tenancy in common, unless a contrary intent is expressed.

The judge says: “In construing a statute, each day but serves to demonstrate the necessity of looking at its very words or language. This rule neglected, and we might be led to think that the case of Jackson ex dem. v. Stevens (16 Johns. 110), and others of similar import cited by appellees [plaintiffs], were in conflict with the above position. Their statute was, that no estate in joint tenancy shall be claimed under any grant, &c., unless the premises therein mentioned shall be declared to pass,'not a tenancy in common, but a joint tenancy. And as a conveyance to husband and wife did not (and never did), invest them with an estate in joint tenancy, it was held most properly that the statute did not extend to such a case. Ouistatute, however, is very differently worded. It is, that a conveyance to two or more in their own right, creates a tenancy in common, unless the contrary is expressed. This language is affirmative, declaring what the conveyance does or shall create. That of New York is negative, and speaks of what it shall not create or pass. If in this State the wife is one of ‘ two or more persons, ’ the husband bei ng the other, then the conveyance to these creates a tenancy in common, nothing to the contrary being expressed. They are not indivisible, in the sense and meaning of the common law (and upon this fiction the estate in entirety rests), we have already shown; and the correctness of the conclusion is well attested by the entire spirit of our legislation, touching this relation, as well as by every day observation, when directed to the actual affairs of life.” 1

Cooper v. Cooper, 76 Ill. 57 (Partition, 1875, opinion by Walker, Ch. J.). Land was conveyed in 1865 to a husband and wife. After death of the husband this suit was brought to partition and to assign the widow’s dower. Held, that since the adoption of the “married woman’s law ” in 1861 (which authorized a married woman to acquire, during coverture, real and personal estate as her sole and separate property, under her sole control, and to be held, owned, possessed and enjoyed by her, the same as though she was sole and unmarried, and that it shall not be subject to the disposal, control, or interference of her husband, and shall be exempt from execution or attachment for the debts of her husband), the reason for the rule which holds that a conveyance to husband and wife makes them tenants by the entirety, has ceased to exist, and they will take and hold as tenants in common.

Clark v. Clark, 56 N. H. 105 (Foreclosure, 1875, opinion by Cusnikg, Ch. J., and Ladd and Smith, JJ.). In 1854, a son mortgaged certain land to his father. The father died in 1862, and left a will, by which he devised to the son and the latter’s wife all his interest in the mortgaged premises during their natural lives, two-thirds of remainder to their son, and one-third of the remainder to their daughter. The grandson died under twenty-one years of age, leaving no issue. His father afterwards became a bankrupt, and his assignee sold all the bankrupt’s interest in the said real estate. The bankrupt’s wife and daughter brought this bill to foreclose. The purchaser of the assignee demurred. Held, that the testator, having died after the statute of 1860, in relation to estates of married woman, whereby they, so far as their property not derived from their husbands was concerned, became practically endowed with the rights, and subject to the liabilities of unmarried women, the existence of a married woman was no longer merged in that of her husband, and the devise created a tenancy in common, between the husband and wife, and not a tenancy by entirety, which was practically abolished by the said statute.

Wales v. Coffin, 13 Allen, 213 (Oct., 1866, opinion by Wells, J.). The common law rule is stated thus: “By common law, a deed or devise to husband and wife creates one indivisible estate in them both and the survivor of them; not because of their supposed incapacity to hold in moieties, but because, such being presumed to be the intention of the parties, the law holds the estate to be limited accordingly. As a result of this quality of their tenure, the husband cannot destroy the joint tenancy, nor make any conveyance which shall defeat the title of the wife, in case she survives him.”

It was also held that this was not opposed to the modern policy of the law, for the statute which declared tenancy in common to be the presumed form of tenure by two or more persons, expressly saved the common law tenure of husband and wife from that construction.

Stuckey v. Keefe, 26 Penn. St. 397 (Ejectment, 1856, opinion by Lewis, Oh. J.). The land was conveyed to husband and wife, their heirs and assigns, as tenants in common, and not as joint tenants. The husband died in 1830. Defendants claimed under a conveyance in 1844, by the widow. Plaintiff, under the husband’s heirs. Held, that the husband and wife both became seized of the entirety, and, on the death of either, the wholti estate went to the survivor, irrespective of the intention of the parties to the conveyance.

Trimble v. Reis, 37 Penn. St. 448 (Scire facias, 1860). In 1846, the widow and heirs of one William Peebles conveyed to George Trimble and Jane D., his wife, who was a daughter of the deceased, certain land by a deed intended merely as a partition deed. Thereafter Trimble and wife joined in a sale of part of said land, and took a mortgage to them both to secure the payment of the purchase-money. The husband released the mortgage in 1853, without the wife’s consent. Held, that under the Married Woman’s Act of 1848,—which secured the title of a wife’s real and personal property to herself, and saved it during her lifetime from any title by operation of law in her husband, so that it should not be liable for his debts, or be sold, conveyed, transferred, or encumbered by him without her consent in writing, and duly acknowledged,—the mortgage was the separate property of the wife, and that the release of the husband, without a consideration that would legally amount to a payment of the mortgage, did not bind her.

Bates v. Seely, 46 Penn. St. 248 (Debt for purchase-money, 1868, opinion by Woodward, J.). The land was conveyed to husband and wife, with express reference to the decision in Stuckey v. Keefe, 26 Penn. St. 397, above stated. She died in 1861, leaving him and two children surviving. In 1863, he sold to Bates, $500 to be paid in hand, upon execution of the deed, and the residue to be paid in five years. Bates having refused to pay the $500, and give the mortgage upon tender of the deed, Seely brought this action. The .court below having given judgment in favor of Seely, Bates -appealed. Held, that the deed to Seely and wife was good under the Married Woman’s Act of 1848 (stated below), and that upon the death of the wife, the whole estate vested in the husband, and his deed therefor would pass the title thereto to the purchaser.

French v. Mehan, 56 Penn. St. 286 (Ejectment, 1867). Husband and wife took title under a deed dated in 1828. The wife claimed as survivor of her husband, who died in 1863. The plaintiff in error claimed title under a sheriff’s sale of the land, upon a judgment against the husband, in his lifetime, subsequent to the deed. Held, that the wife was entitled to the land, discharged of the husband’s debts.

In McCurdy v. Canning, 64 Penn. St. 89 (Ejectment, 1870, opinion by Thayer, J.), husband and wife held under a conveyance in fee made to them during their coverture (in 1855), and the question was whether plaintiffs, as purchasers at sheriff’s sale of the husband’s interest, could recover possession of any part. Held, that the husband and wife during coverture were not properly joint tenants or tenants in common, but both were seized of the entirety; that neither could dispose of any part without the assent of the other, but that the whole must remain to the survivor; and that the Married Woman’s Act of 1848 prevented a purchaser at a sheriff’s sale of a husband’s interest in an estate held by entireties, while the wife lived, from recovering possession, even for the life of the husband. The clause of the act of 1848, above referred to, is as follows: “Every species and description of property, of whatever name or kind, which may accrue to any married woman during coverture, by will, descent, deed of conveyance, or otherwise, shall be owned, used, and enjoyed by such married woman as her own separate property, and shall not be subject to levy and execution for the debts or liabilities of her husband, nor shall such property be sold, conveyed, mortgaged, or transferred, or in any manner encumbered by her husband without her written consent first had and obtained, and duly acknowledged,” &c.

Diver v. Diver, 56 Penn. St. 397 (Ejectment, 1867, opinion by Strong, J.). The plaintiff was a brother of John Diver, deceased, as whose heir he claimed the land. The defendant was the widow of John. On the trial, it appeared that the mother of John was living, and she was substituted as plaintiff in the place of the brother. The land in question was conveyed in March, 1849, to John Diver and his wife, the defendant. Held, that the Married Woman’s Act of 1848, above stated, was to protect the wife’s property, by removing it from under the dominion of the husband, not to destroy the oneness of husband and wife. That the act had not in view the force and effect of the instrument by which the estate might be granted to her, but regulated its enjoyment after it had vested in her. That it no more destroyed her union with her husband than a settlement to her separate use. And that the act was remedial, and to be construed to suppress the mischief at which it was aimed, not to alter the common law further than necessary to remove the mischief. Consequently, that the defendant, on the death of her husband, succeeded to the whole estate granted by the deed.

Fisher v. Provin, 25 Mich. 347 (Suit to quiet title, 1873). Land was conveyed in 1855 to a husband and wife, “their heirs and assigns forever.” After the death of the husband, his son and only heir-at-law quit-claimed the property. The defendant, whose title was derived through this deed, claimed an undivided half of the land, but the plaintiff, the widow, claimed the whole as survivor of her husband. Held, that the complainant and her husband did not take as tenants in common; that, on the death of her husband, the whole title inured to her, and that there was nothing in the provisions of the constitution and statutes relating to the rights of married women, which would convert such estate into a tenancy in common. The part of the constitution above referred to is as follows: “The real and personal estate of every female, acquired before marriage, and all property to which she may afterwards become entitled by gift, grant, inheritance, or devise, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations, or engagements of her husband, and may be devised or bequeathed by her as if she were unmarried.” The act of 1855 carries this into effect.

Davis v. Clark, 26 Ind. 424 (Injunction of sale on execution, 1866, opinion by Elliott, J.). In 1863, a wife joined with her husband in a deed of her lands to a third person, who afterwards reconveyed the same to the husband and wife, “the survivor to inherit.” A judgment having been subsequently obtained against the husband and a sale of this land on execution thereunder having been advertised, an injunction was asked by purchaser of land from the husband and wife. Hell, that both husband and wife were seized of an entirety under the common law, which had been expressly recognized by the statute law of the State; and that the husband had not an estate that could be sold on execution, for the statute enacted that “ no lands of any married woman shall be liable for the debts of her husband, but such land and the profits therefrom shall be her separate property, as fully as if she was unmarried; provided that such wife shall have no power to incumber or convey such lands, except by deed, in which her husband shall join.” Also, “The separate deed of the husband shall convey no interest in the wife’s land.”

Simpson v. Pearson, 31 Ind. 1 (1869, opinion by Elliott, Ch. J.). To an administrator’s petition for sale of land, which had been conveyed to the decedent and his wife in 1856, the wife answered, claiming sole ownership of land as survivor of her husband. Held, that upon the husband’s death the wife became seized of the whole estate to her sole use, by virtue of her right of survivorship.

Chandler v. Cheney, 37 Ind. 391 (Injunction against foreclosure sale, 1871, opinion by Buskibk, J., and Lewis, Ch. J.). Land conveyed in 1866 to a husband and wife, was afterwards mortgaged by the husband alone. This mortgage having been foreclosed, this proceeding was instituted by one who obtained title through a grantee of the husband and wife, subsequently to the giving of the mortgage. Held, that under the Indiana statute, the same difference existed between joint tenants and tenants by entireties, as at common law, and that the husband and wife took under the above deed as tenants by entireties, and that the injunction should be granted. Lewis, Ch. J., in his opinion, says: “The legislature [in 1851-2], abolished tenancies by curtesy in the husband, and dower in the wife, and gave the wife one-third in fee, subject to certain limitations and restrictions. It secured to the wife her separate estate in her lands, and deprived the husband of the power of alienating or incumbering it, without her consent and concurrence, and declared that it should not be seized and sold upon execution for the debts of the husband. It abolished estates tail. It modified the common law in reference to joint tenancies, by providing that a joint deed to two or more should be construed to be tenancies in common, unless the intention to create a joint tenancy was expressly declared in the deed, or was made manifestly to appear from the tenor of the instrument.. But it did not abolish estates by the entireties as between husband and wife, but provided that when a joint deed was made to husband and wife, they should hold by entireties, and not as tenants in common or as joint tenants.....It is quite obvious to us, that the evident and manifest intention of the legislature, in providing for the continuance of estates by entireties, as between husband and wife, when joint tenancies between persons who were not married had been virtually abolished, was to provide a mode in which a safe and suitable provision could be made for married women.”

Jones v. Chandler, 40 Ind. 588 (1872, opinion by Pettit, Ch. J.). Held, that a will devising land to a husband and wife creates an estate by entirety, and husband cannot alienate it, nor can it be sold on execution against him to the wife’s prejudice.

Anderson v. Tannehill, 42 Ind. 131 (Action to enforce vendor’s lien, 1873, opinion by Buskibk, J.). A husband and wife and a third person were joint purchasers of real estate in 1867. Held, that the husband and wife took an undivided one-half of the premises as tenants by entireties.

Abshire v. State ex rel. Wilson, 53 Ind. 64 (Suit 'on a guardian’s bond, 1876, opinion by Buskirk:, J.). A husband and wife sold, in 1853, the wife’s land, and took, in payment therefor, promissory notes payable jointly to the wife and husband, and they executed to the purchaser a bond conditioned to convey upon payment of purchase money. Thereafter the wife died, leaving surviving her husband and two children. At the time of her death part of the notes remained unpaid, and the title to the land was in her. Subsequently the purchaser, having paid for the land, compelled the husband to give a deed. The only property which came into the husband’s hands, as 'guardian, was the balance due upon the notes. Held, that the husband took the notes by survivorship. The judge says: “Section 5 of the act of July 34, 1853, 1 G. & H. 294, provides that ‘ the personal property of the wife, held by her at the time of her marriage, or acquired during coverture by descent, devise, or gift, shall remain her own property to the same extent and under the same rules as her real estate so remains, and on the death of the husband before the wife, such personal property shall go to the wife, and on the death of the wife before the husband, shall be distributed in the same manner as her real estate descends, and is apportioned under the same circumstances.’ The above section only applies, in terms, to such personal property of the wife as vías held by her at the time of her marriage, or was acquired during the coverture by descent, devise, or gift, and leaves in force the common law rule in reference to personal property not acquired in one of the modes above indicated.”

Hulett v. Inlow, 57 Ind. 413 (Injunction, 1877, opinion by Perkins, J.). A conveyance of land was made in 1868, to a husband and wife, and a third person. A judgment having been obtained against the husband, execution was levied on one third part of the land, and it was advertised for sale. Held, that the real estate conveyed to a husband and wife and a third person, is held by husband and wife as tenants by entireties, though they be not described therein as husband and wife, and is not subject to execution for the debts of the husband.

Lash v. Lash, 58 Ind. 526 (Partition, 1877, opinion by Perkins, J.). In 1870, the land in question was conveyed to husband and wife “as joint tenants (survivor taking the whole)”. In 1873, the wife obtained a divorce from her husband, who died thereafter in 1873. His children brought this action, claiming an undivided half. In sustaining demurrer to the complaint, the court held, that upon the death of the husband, the whole estate vested on the wife. The judge says: “ The deed of conveyance, as appears in this case, declared the grantees to be joint tenants, with right of survivorship. We need not inquire whether this tenancy, so declared, superseded, during the continuance of the marriage, that which resulted by law from the conveyance to husband and wife, without any declaration as to the manner of holding; because, we think, that, as in an ordinary deed, the parties hold by tenancy in common, which, in cases of conveyances to husband and wife, is superseded, or put in abeyance, by tenancy by entireties during the continuance of the marital relation, and, on the dissolution of that relation otherwise than by death, the tenancy in common is restored; so, where the parties, husband and wife, hold by a conveyance declaring them to be joint tenants, we think, on the dissolution of the marital relation by divorce, the joint tenancy declared in the deed becomes the tenancy by which the divorced parties thenceforward hold the property.” . . . “ But, in this case, . . . the title to the entire property vested in the surviving joint tenant by the express terms of the deed.”

Bennett v. Child, 19 Wisc. 362 (Injunction, 1865, opinion by Downer, J.). In 1854 a husband and wife took deed to the land running to both. In 1860, the land was sold on an execution against the husband. This action was to restrain the sheriff from giving a deed to the purchaser. The statute of Wisconsin, relating to married women, provides that a married woman can receive and hold real and personal property to her sole and separate use; can convey and devise real and personal property, including the rents and profits of the same as a feme sole; that the husband has no control over, or power to dispose of her property, real or personal; and the same is not liable for his debts. Held, that the husband and wife took by entireties, as at common law, and that the statute was not intended to apply to estates of this kind.

Robinson v. Eagle, 29 Ark. 202 (1874, opinion by Witherspoon, Sp. J.). A father conveyed land to his daughter and her husband. After the daughter’s death, her husband conveyed it to his wife’s sister. The plaintiff claimed that at the death of the wife the estate descended as an estate in common, and her father was entitled to recover the same, and receive one-half of the rents and profits thereof from her death. Held, that the common law rule that the husband and wife were seized of the entirety in the land had not been changed .by statute, nor by the constitution, which provided as follows: “The real and personal property of any female in this State, acquired either before or after marriage, whether by gift, grant, inheritance, devise, or otherwise, shall, so long as she may choose, be and remain the separate estate and property of such female, and may be devised or bequeathed by her, the same as if she were feme sole.”

See also a discussion of this subject in 5 Southern Law Rev. N. S. 161.

In Wales v. Coffin, 13 Allen, 213, the husband and wife, having taken in entirety, he mortgaged, she joining to release dower; he then quit-claimed without her, and the grantee holding also the mortgage conveyed by a warranty deed in which husband and wife joined to release dower. Subsequently the title was again vested in the husband, who mortgaged it, she joining in relinquishment of dower, and of her free consent. Held, that she was not estopped, by her joining with her husband in the various deeds and mortgages, from claiming title after his death, and that consequently she was entitled to recover the land.  