
    Thornton v. Thornton.
    February, 1825.
    Joint Tenancy — What Constitutes — Estate to Husband and Wife. — An estate given to husband and wife is nota joint-tenancy, and therefore not affected by our act of Assembly, concerning joint rights and obligations. 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.
    This was an appeal from the Fredericks-burg Chancery Court, where Frances and Ann F. Thornton, infants, filed a bill against Francis Thornton, by their next friend.
    
      The plaintiffs were children of the said Francis Thornton, the defendant, and Jane Thornton, his wife, who was then dead. The subject of the suit was this: John A. Thornton died, leaving a will, in which there is the following clause: “Item, I give, devise and bequeath to my brother-in-law Francis and my sister Jane Thornton all the 'Test and residue of my estate, real and personal, to them and their heirs forever, upon the terms and conditions following.” These conditions are not material to the present report. Jane Thornton died in the life-time of her husband Francis. The complainants, as children of the said Jane, claimed the moiety of the said estate, which, they said, belonged to their mother; contending that their parents were joint devisees of the estate devised to them by John A. Thornton, and that by the law of Virginia, the interest of the said Jane, who died first, _ did not accrue to her husband, as the survivor, but descended to the complainants.
    Francis Thornton answered, asserting his right to the absolute estate, in fee simple, in the lands devised by John A. Thornton to him and his wife.
    The Chancellor decreed in favor of the defendant, and the complainants appealed to this Court.
    Leigh, for the appellants.
    The question is, whether if lands be conveyed to husband and wife, and their heirs, during their coverture, the husband and wife be joint-tenants thereof, within the meaning of the statute of Virginia concerning partitions, joint-rights and obligations? 1 Rev. Code, 98.
    It is certain the husband and wife, in such case, are not, as other joint-tenants are, seised per my et per tout. They take per tout, but not per my. There can be -no moieties between them. They are both seised of the entirety; so that the alienation of either without consent of the other, and even a forfeiture by one, will in no wise affect the right of the other. The survivor takes the whole. Co. Litt. § 291. 187, b.; Ib. 133, a. Margery Moses’s Case; Back v. Andrew, 2 Vern. 120; Green v. King, 2 W. Black. 1211; Glaister v. Hewer, 8' Ves. jr 199. Hence it would seem, that though husband and wife, in such case, be not joint-tenants, subject to all the incidents which attach *to an ordinary estate in joint-tenancy, their estate is more emphatically a joint-estate than any other joint-tenancy whatever; since it can, by no possibility, be severed.
    Are they joint-tenants within the meaning of our statute? 2 Black. Comm. 182, says, “They are neither properly joint-tenants nor tenants in common; for, husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety per tout et non per my.” He does not say they are not joint-tenants in any sense; but only that they are not properly joint-tenants; because, unlike ordinary joint-tenants, they are seised per tout, but not per my. Their estate is more indefeasibly joint than any other joint-tenancy.
    On these authorities, it has been held by the Supreme Court of New-York, in Jackson v. Stephens, 16 Johns. 110, and by Chancellor Kent, in Rogers v. Benson, 5 Johns. Ch. Ca. 437, that husband and wife, in such case, are not joint-tenants. On the other hand, Coke says expressly, that they are joint-tenants, notwithstanding the diversity between them and ordinary joint-tenants, in respect to the inseparability of their rights. Co. Litt. 299, b. And the Supreme Court of Massachusetts admits they are joint-tenants, though perfectly aware of the distinction. Shaw v. Hearsey, 5 Mass. Rep. 521.
    As to the construction of our statute:
    There is a statute in New-York, concerning joint-tenancy, under which it has been held, that husband and wife, in such case, are not joint-tenants within its meaning. Jackson v. Stephens, 16 Johns. 110; Rogers v. Benson, 5 Johns. Ch. Cas. 437. There is a similar statute in Massachusetts, under which there has been a similar determination. Shaw v. Hearsey, 5 Mass. Rep. 52.1. But these statutes are not like ours. They are by no means so strong or comprehensive. :1 Rev. Code, ch. 198, § 2.
    By our statute, the jus accrescendi between joint-tenants, is abolished, “whether they be such as might be ^compelled 1o make partition or not.” This is applicable to a joint-estate purchased to husband and wife, during coverture. All other joint-estates are capable of severance, either by writ of parti-tione facienda, or by alienation. The expression, “of whatever kind the estates or thing holden may be,” extends to all sorts of joint-estates.
    Stanard, for the appellee.
    [The Court having entered fully into the argument on this side, it is deemed unnecessary to give the argument at the bar.]
    February 19.
    
      
      Joint Tenancy — What Constitutes — Estate to Husband and Wife. — A devise or conveyance of an estate to husband and wife does not create a joint tenancy in the technical sense of that term, but each party takes the entirety, and the survivor takes the whole, not by survivorship but by virtue of the original conveyance. For this proposition, the principal case is cited with approval in M’Clanachan v. Siter, 2 Gratt. 297; Norman v. Cunningham, 5 Gratt. 70. 78; Dooley v. Baynes, 86 Va. 646,10 S. E. Rep. 974; Beckham v. Duncan. 1 Va. Dec. 695; Beckham v. Duncan, 1 Va. Dec. 669; Bank v. Corder, 32 W. Va. 242, 9 S. E. Rep. 224; McNeeley v. South Penn Oil Co., 52 W. Va. 618, 44 S. E. Rep. 509. And therefore the act abolishing survivorship between joint tenants did not apply to that peculiar estate known as an .“estate by entirety.” McNeeley v. South Penn Oil Co., 52 W. Va. 616, 44 S. E. Rep. 512, citing principal case.
      *See further, monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159, See principal case also cited in Shanks v. Edmondson, 28 Gratt. 813.
    
   The Judges delivered their opinions.

JUDGE CARR:

_ The controversy in this case depends on that part of the will of John A. Thornton, by which he devises to his brother-in-law, Francis Thornton, and h.s sister Jane, (they being man and wife,) all the residue of his estate, real and personal, to them and their heirs, forever, on certain condi-tons, which it is not material to state. The wife, Jane, has since died, leaving two infant children, who, by their next friend, have filed this bill against their father, claiming their mother’s moiety of the land and personal estate. The only question raised in the argument, was this; — when real estate is given to husband and wife, and their heirs, are they joint-tenants, and within the operation of our act of Assembly, which abolishes the right of survivor-ship?

Joint-tenants are said to be seised per my et per tout, by the half and by all; that is, (as Blackstone explains it,) they each of them have the entire possession, as well of every parcel, as of the whole. The most striking incident in joint-estates, is the right of survivorship; “the natural and regular consequence (says Blackstone) of the union *and entirety of their interest.” Joint-tenancy may be severed and destroyed by alienation, or any act which destroys either of its four constituent unities; and whenever, or by whatever means, the jointure ceases, or is severed, the jus accrescendi, at the same instant, ceases with it. But, though the jointure might be destroyed by various acts, yet, at the common law, there was no mode, by which a partition might be compelled; so that the joint-tenants might hold, each his moiety in severalty. To remedy this inconvenience, the statutes of 31st and 32d Hen. 8, gave the writ de partitione facienda, by which joint-tenants, and tenants in common, might be co-acted and compelled (as the statute expresses it,) to make partition. The first of these statutes applied to estates of inheritance only; the second took in estates for life or years; neither of them comprehended personal chattels. Now, although these laws use the broadest terms, “all joint-tenants that be, or hereafter shall be, of estates of inheritance,” &c. may be compelled to make partition, &c.; yet it is most certain, that they have never been supposed to reach the case of lands given in fee, (or for any lesser estate,) to husband and wife; for all the books, from the oldest I have been able to examine, down to the present day, agree, una voce, in this; that husband and wife, not only cannot compel each other to make partition, but that even if they concur in the wish, they have not the power, to sever the tenancy. It is a sole, and not a joint-tenancy. They have no moities Each holds the entirety. They are one in law, and their estate one and indivisible. If the husband alien, if he suffer a recovery, if he be attainted; none of these will affect the right of the wife, if she survive him. Nor is this by the jus accrescendi. There, is no such thing between them. That takes place, where, by the death of one joint-tenant, the survivor receives an accession, something which he had not before, the right of the deceased. But husband and wife have the whole, from the moment of the conveyance *to them; and the death of either cannot give the survivor more.

To shew that the language I hold, is not too strong, I will quote two or three, out of the numerous cases, to be found on this subject. In Coke Littleton, 187, b. we have the following case. William Ocle and Joan his wife purchased lands to them two and their heirs. After, William was attainted of high treason for the murder of the King’s father, Edward 2d, and was executed. Joan his wife, survived him. Edward 3d, granted the lands to Stephen de Bitterly and his heirs. John Hawkins, the heir of Joan, in a petition to the King, dis-closeth this whole matter; and upon a scire facias against the patentee, hath judgment to recover the lands, for the reason (says my Lord Coke) here yielded by our author. This reason was, that husband and wife are one in law, and there are no moieties between them. In the same page it is said, “If an estate be made to a villein, and his wife being free, and to their heirs, albeit they have several capacities, viz. the villein to purchase for the benefit of his lord, and the wife for her own, yet if the lord of the villein enter, and the wife surviveth her husband, she shall enjoy the whole land, because there be no moieties between them.” In 3 Rep. 5, a case is cited from Moor, which I have examined. It is a very strong one. The husband levied a fine; but this was decided to have no effect on the wife’s interest. The reason given is, that there are no moiétites between them; but both have the whole; and it is added, that during the wife’s life, the jointure can by no possibility be severed. Here it may be remarked, that in this case it is called a jointure, and in several others, sometimes a joint-estate, and sometimes they are called joint-tenants. But I consider this a looseness of phrase merely. The estate being given to two, which in every other case would make a joint-tenancy, it is thought that these words approach nearer to a description of it, than any others that could be *used, without a good deal of circumlocution. In Glaister v. Hewer, 8 Ves. 195, the bankrupt had, many years before bankruptcy, but during cover-ture, bought land, and taken the deed to himself and wife, and their heirs. The Master of the Rolls says, “unless the joining the wife was merely colourable and fraudulent, without intention of giving her any estate, it is not made to the only use of the bankrupt; and in a purchase jointly with his wife, he has no use which he might lawfully depart with, so as to bind her; for Ihe same words in a conveyance to husband and wife, that would make a joint-tenancy in others, gives the entirety to them; and the husband, as against her,, cannot pass any right, title or interest; but if she survives, the whole must accrue to her. His conveyance is not good for a moiety.” In Doe v. Parratt, 5 T. Rep. 652, Lord Kenyon says, “It seems to me, from the manner in which the case is drawn, that it was intended to be argued, that the devise in the will to the nephew and his wife, created a joint-tenancy; but that question has been properly abandoned; for though a devise to A. and B. who are strangers to, and have no connexion with each other, creates a joint-tenancy, the conveyance by one of whom severs the joint-tenancy, and passes a moiety; yet it has been settled for ages, that when the devise is to husband and wife, they take by en-tireties and' not by moieties, and the husband alone cannot by his own conveyance, without joining his wife, divest the estate of the wife.”

Thus stood the law, and thus it had been settled for centuries, when the statutes of 31st and 32d Hen. 8, was substantially copied into our Code. This was done at the revisal of 1779, passed in 1785, and taking effect in 1787. 12 Hen. Stat. at Large, p. 349. It is impossible to suppose, that the learned and able lawyers, who were the authors of that revisal, were unacquainted with the state of the law on (his subject. They could not but- know, that the case of husband and wife had never-been considered, either within the letter, or the mischief, of these statutes. *The first section of our law of “Partitions, Joint Rights and Obligations,” giving the writ of partition, &c. is, in substance, taken from those acts. Within this first section then, it cannot have been intended to include the case of husband and wife. And yet, if that case had been thought to require the remedy given to joint-tenants and tenants in common, this was the place for it; and nothing would have been easier than to have said, that in all cases where husband and wife take an estate, which would have made them joint-tenants, if unconnected with each other, they shall henceforth be held joint-tenants, and compellable to make partition. The absence of all provision on the subject, furnishes strong ground to conclude, that the case was not considered within the mischief of the statute. But let us see whether the second section includes it. It may not be amiss to remark, by the way, that the words which are thrown into a second section, in the subsequent revisions, formed a part of the first, in the original act. After - enacting that joint-tenants and tenants in common, may be compelled to make partition, the act proceeds thus; “If partition be not made between joint-tenants, whether they be such as might have been compelled to make partition or not, or of whatever kind the estates or thing holden or possessed be, the parts of those who die first shall not accrue to the survivors, but shall descend or pass by devise, and shall be subject to debts, charges, curtesy or dower, or transmissible to executors or administrators, and be considered, to every other intent and purpose, in the same manner as if such deceased • joint-tenants had been tenants in common.” Does this section comprehend the case of husband and wife? I answer no; first, because the law applies to none but joint-tenants, which I have shewn that husband and wife are not; secondly, it is said, “the parts of those who die first shall not accrue to the survivors;” shewing that the law contemplated those only, who had parts or moieties; and all the cases shew, that between husband and wife, there are no parts or moieties, nothing which *the act of the one can take from, or his death add to, the other. As to the words, “whether they be such as might have been compelled to make partition or not,” I say they still apply to joint-tenants only; “whether they be such (joint-tenants) as might have been compelled,” &c. And has not this clause, in its correct sense, sufficient matter to operate upon? Are there not many joint-tenants not compellable to make partition? Neither the statutes of Hen. 8, nor our law, give the writ of partition in joint tenancies of personal chattels. Now we know there are many such. Littleton says, section 381, “If a horse, or any other chattel personal, be given to many, he which surviveth shall have the horse only.” Here is a whole class of cases, where partition could not be compelled, and from which, by the operation of this clause, the jus accrescendi is taken away. That the clause pointed to this class, is most evident, from the words, “of whatever kind, the estate or thing holden, or possessed, be,” and the further words, “or transmissible to executors or administrators.” This satisfies the clause perfectly, without extending it to a case neither within its letter or spirit. The words “of whatever kind the estate holden be,” seem to have inclined our excellent commentator on Blackstone, to the opinion, that this clause takes away survivor-ship between husband and wife. 2 Tuck. Black. 181. Dor the opinions of this gentleman, 1 have the highest respect. But, it seems to me, that these words were, in no wise, intended to reach such a case. The word “kind” (of whatever kind the estate be,) means, 1 think, to describe the quantity, not the quality, of the estate. The quality was already marked, by calling them joint-tenants. But, as there may be a joint-estate in fee, for life, or years, an.d as it was the intention of the act to abolish the right of survivorship in all joint-estates, it uses the terms “of whatever kind the estate may be.”

1 have said nothing on the point in the cause, which was the ground of the Chancellor’s decree, because it was wished at tlie bar, that the opinion of the Court should be expressed *as to the tenancy of husband and wife; and thinking that decisive to support the decree, I have not examined the other ground.

I am for affirming the decree.

JUDGE GREEN:

The authorities referred to in the argument, shew- incontestably, that a conveyance to husband and wife, during coverture, vested in each of them the same entire estate. Each was seised of the whole of the land, and not of part; as well as of the whole, as in the case of joint-tenants; and upon the death of one, the other continued to be seised of the whole, precisely as he or she held it in the life-time of the deceased. The survivor claimed nothing by the jus accrescendi. His estate was not enlarged, or added to, in any respect, by reason of his survivorship, as in the case of proper joint-tenants; where the part belonging to the deceased, accrued to the survivor. This resulted from the principle of law, that husband and wife were one; and, upon the same principle, a conveyance to a husband and wife and another, jointly, vested in the husband and wife a moiety, and in the third person a moiety; and they held by moieties as joint-tenants. But, the husband and wife held their moiety, not as joint-tenants, by moieties between them; but as one sole tenant, in whom the whole' indivisible interest in that moiety vested. Nor could this interest be severed by any act of the husband or wife, or both of them. Such a conveyance to husband and wife, had precisely the same effect in law, as if the land had been given to them, during the lives of both, and after the death of either, to the survivor alone.

The question is, whether our statute concerning Joint Rights and Obligations, affects, in any way, such an estate as this. The words of the statute are, “Lf partition be not made between joint-tenants, whether they be such as might have been compelled to make partition or not, or of whatever *kind the estates or thing holden or possessed be, the parts of those who die first, shall not accrue to the survivors; but shall descend or pass by devise, and shall be subject to debts, charges, curtesy or dower, or transmissible to executors or administrators, and be considered to every other intent and purpose, in the same manner as if such deceased joint-tenants had been tenants in common.” Upon this statute, I observe, that it was intended to apply only to cases, in which partition might have been made, in the lifetime of the deceased party, either by legal process, or by consent of the tenants. This is the necessary construction of the words, “if partition be not made,” then the “parts,” &c. “shall not accrue,” &c. In the case of a conveyance to husband and wife, no partition could be made, either coer-cively or by their consent; not because of their connexion as husband and wife, but because neither party had a right to claim any part in severalty, both being entitled to all. Again; the statute declares, that “the parts of those who die, shall not accrue to the survivors.” This provision can apply only to cases, in which the tenants were entitled in their life-times severally to_ parts of the subject. The husband and wife, in the case at bar, were not entitled to parts of the subject; but each was entitled to the whole; and the survivor claims the whole, not by receiving any addition or accession to his estate, or rights or interest, by the death of the other; but because he was entitled to the whole by the original conveyance. The statute intended to prevent the right which belonged to the deceased, and which might be disposed of in his life-time, from accruing to the survivor, and to devolve that right upon the heir, devisee, executor or administrator of the deceased;. not to give a new right to the representatives of the deceased, which he had not in his life-time. In the case of husband and wife, neither could, in the lifetime of the other, dispose of any interest in the lands so held by them, to the prejudice of the other surviving; as might be done in the case of proper joint-tenants.

If a husband were, in such case, to convey all his ^interest in the land to a purchaser, and die, leaving the wife surviving him, the statute does not protect the purchaser, and could it be said, that a moiety should, under the statute, descend to his heir? Confining the statute to the case of proper joint-tenants, there was no occasion to provide for the safety of a purchaser from either; since, at the common law, his title would be valid, and he would hold as a tenant in common with the other joint-tenant. The construction insisted on by the appellees, would have the effect of vesting in the husband and wife new rights, to which they were not entitled by the effect of the conveyance under which they claim; and of taking away a vested right from the other. Such an effect ought not to be given to any statute, if it could, when it is susceptible of such a construction as will only tend to preserve existing rights, by repealing a rule of law, which, if unrepealed, might give such existing rights, in one event, to another. The expression, “whether they be such as might be compelled to make partition or not,” applies to cases in which, although joint-tenants hold by parts, as for instance by moieties, they cannot, by legal process, be compelled to make partition; but may make partition by consent, or sever the joint-tenancy by the act of one of them. As if a joint-estate be given to a man and woman, who afterwards intermarry; they are joint-tenants, and hold by moieties. Yet, neither can compel the other to make partition; but either may convey his or her part, and thus sever the joint-tenancy. And so in the case of a joint-interest in personal property, there were no legal means to compel a partition. It was to these cases that this expression applied. It appears by the provision, that executors and administrators might succeed to the parts of the deceased, that personal property was in the contemplation of the Legislature.

For these reasons, the decree should be affirmed. ,

JUDGES COALTER, CABELL and the PRESIDENT, concurred, and the decree was affirmed.  