
    Ursula Jooss, App’lt, v. Christian Fey et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed December 1, 1891.)
    
    Deed—Husband and wife.
    Under a deed, made since the enabling acts of 1848 and 1849, to a husband and wife, which provides in express terms that they should take as-joint tenants and not as tenants in common, the wife takes and holds as a joint tenant with her husband and not as a tenant by the entirety.
    Appeal from judgment of the city court of Brooklyn, general term, affirming judgment dismissing complaint.
    Action of partition. The defendants, Christian Fey and Louise Fey, are husband and wife, and in 1882 they bought the premises described in the complaint, each contributing to the purchase money from his and her own property. The words of grant were to them “ the parties of the second part, as joint tenants, and to their heirs and assigns forever,” and the habendum clause was, to them “ as joint tenants and not as tenants in common.” Subsequently, Louise, the wife, conveyed her interest in the premises to the plaintiff. The court below, at trial and at general terms, held that the action could not be maintained, on the' ground that the defendants had acquired and held the premises as tenants by the entirety, and the wife could not convey as she did. The plain tifE‘appealed to this court.
    
      H. C. Conrady, for app’lt; James C. Church, for resp’ts.
    
      
       Reversing 30 St. Rep., 147.
    
   Gray, J.

Prior to the passage of the various acts by the legislature of this state for the benefit of married women (in the years 1848, 1849, 1860 and 1862), the common law rule obtained that by a conveyance to husband and wife they could only take and hold the estate as tenants by the entirety. It was immaterial to ■affect the quality of their holding, whether the estate was given to them or acquired by their joint purchase. Words of grant, which to separate persons would convey in joint tenancy, to husband .and wife would convey by entireties. They could not take and hold otherwise. They were seized each of the whole and neither ■could sell without the consent of the other. Williams on Real Property, 208 ; 2 Kent’s Com., §§ 110, 132 ; Jackson v. Stevens, 16 Johns., 113, 115. This estate of tenancy by the entirety has but one feature in common with that of a joint tenancy, and that is in the right of survivorship. In all other essential respects they ■differ. The estate which vests by virtue of a grant jointly to husband and wife is peculiarly the result or product of the marriage relation and depends for its continuance upon the unity of man and wife.

Lately, at our October term, we had occasion in Stelz v. Schreck, 40 St. Rep., 267, to consider the effect upon this tenancy by the entirety of the severance of the marriage relation by a divorce, and we held that husband and wife then held as tenants in common. This result, it was considered, flowed logically from the peculiar cause for the tenancy by the entirety. It depended upon the continuance of the marriage relation, and ceased with its cessation. When the married women’s acts were passed, the effect was to relieve them from various disabilities under which they were at common law, and to qualify them, to the extent specified in the acts, to act as unmarried women might with respect to their separate estates, and to vest them with the same capacity for the acquisition of a separate property as though they were unmarried women. The disabilities were not wholly removed; but only to the extent that the statutes, by their plain reading, must be taken to have changed the common law as affecting the legal status of married women. By § 3 of chapter 200 of the Laws of 1848, as ■amended by chapter 375 of the Laws of 1849, it was provided that “ any married female may take by inheritance, or by gift, ■grant, devise or bequest, from any other person than her husband, and hold to her sole and separate use, and convey and devise real ■and personal property, or any interest or estate therein, and the rents, issues and profits thereof in the same manner and with like effect as if unmarried, etc.”

The subsequent legislation of 1860 (chap. 90), and 1862 (chap. 172), provided that all property owned by, coming to, or acquired by a married woman as her separate property, “ shall, notwithstanding her marriage, be and remain her sole and separate property, * * * and shall not be subject to the interference or control of her husband, or liable for his debts,” and that she may sell and convey such property as if she were unmarried. In Meeker v. Wright, 76 N. Y., 262, it was considered by the learned judge, who delivered the opinion in that case, that this legislation had abrogated the common law rule governing a conveyance to husband and wife. But in that view a majority of the judges did not concur, and the appeal was decided upon another point.

When, later, in the case of Bertles v. Nunan, 92 N. Y., 152, it became necessary to consider the effect of the changes wrought by the legislature of this state in the status of the married woman at common law, the majority of the court concurred with Judge Earl in his opinion that whatever the effect of a conveyance to husband and wife was prior to 1848, it so remained thereafter. It was considered that the provisions of the legislative acts in behalf of married women did not define what estate the husband and wife shall take in lands conveyed to them jointly, and that the legislature did not contemplate the abrogation of their common law unity. “ The common law incidents of marriage,” it was remarked, “ are swept away only by express enactments.” The question is so fully discussed and the authorities and legislation are so generally reviewed by Judge Earl as to relieve us from the necessity of repetition. Whatever was the previous drift of the decisions in this and in other courts, the case of Bertles v. Nunan must be held as firmly establishing the proposition that the common law rule as to the unity of the husband and wife had not been abrogated by the legislation of this state with respect to their tenancy of real property when conveyed to them merely by such a description. Those expressions of the learned judge, in his opinion in that case, which speak of the wife’s right to receive conveyances, or of their force and effect in respect to the estate granted, have reference to the case of a grant as made to the wife in connection with her husband, and should not be read as importing otherwise in the construction of the statutes. Nothing in that decision holds against the right of the married woman’s capacity to hold real property as a joint tenant with her husband, provided that it is the plain intent of the deed of conveyance as expressed in the words of grant. If it appears plainly that she takes not merely as the wife, .but separately by virtue of her individual right, then the case would come within the express words of the enabling enactments of 1848 and 1849, which conferred the capacity upon the married woman to acquire by grant, or otherwise. Under these acts a husband and wife may be made joint tenants or tenants in common where the intention is made plain by express words.

This must be so, if we would give to them meaning and force. The disabilities of the woman, which were the consequences of her coverture at common law, were incompatible with modern notions, and with that recognition of her natural rights which a changed condition of things in the world compelled, and the legislation of the state, commencing with the year 1848, was the outcome of such forces of thought.

The unity of husband and wife caused by the marriage relation continued to subsist, notwithstanding legislation; for it had not expressly abrogated that rule of the common law. The utmost it had done was in express enactments to confer especial capacities and powers upon the married woman; among which was the power to take property as though she were unmarried, and the power to dispose of it as such. Legislation had almost entirely relieved her of her common law disabilities; but the rule of strictness in the construction of statutes changing the common law forbids extending the effect of an act beyond what is required to give it a reasonable and proper effect. Bertles v. Nunan did not deny a full operation to the legislative enactments; it simply applied this rule of construction and confined the operation to what the language of the acts clearly imported; and as they did not in terms withdraw the married female wholly from her status under the law, as it existed prior to the Revised Statutes, nor defined the kind of estate which would vest in her by a grant jointly to her and her husband, the prior rule of the common law remained in force and qualified the interest of each as a tenancy by the entirety, where, by virtue of their union of person, each was seized as of the whole estate, with the right of survivorship and without the right of independent alienation. But, in the case before us, the operation of the common law rule was obviated by the intention of the grantor as shown by the express words of the grant, and the case was brought within the purview of the enabling acts, and so the wife took and held as joint tenant with her husband. This interest was, therefore, alienable by her and was acquired by the plaintiff through her conveyance to him. That acquisition entitled him under the Code, § 1532, to bring the action for a partition.

For the reasons given, I think the judgments of the special and of the general terms should be reversed, and a new trial ordered, with costs in all the courts to abide the event of the trial.

All concur.  