CHAPTER IV. TENANCY BY ENTIRETIES. Definitions, § 63. Difference from Joint-Tenancy, § 64. States in which it prevails, § 65. States in which it does not prevail, § 66. Of what Estates it may be, § 67. Of Personal Property, § 68. How Created, § 69. Husband and Wife take as one person, § 70. Cases holding they cannot take by Moieties, § 71. Power of Husband over, § 73. Sale under Execution, § 74. Power of Husband under Statutes, § 75. 2 63. Definitions.-"An estate by entireties arises on a gift to two persons being, at the time the gift takes effect, husband and wife." "A tenancy by entireties is peculiar," says Mr. Preston, "to a gift to two persons being, at the time the gift takes effect, husband and wife." Why the two celebrated and very accurate writers from whose works the preceding quotations have been made ever spoke of an estate by en 'Jickling on Anal. L. & Eq. Estates, 252. 2 Preston on Abstracts of Title, 39. The same author, in his work on estates, gives a more complete definition. "Tenancy by entireties is when husband and wife take an estate to themselves jointly, by grant or devise, or limitation of use, made to them during coverture, or by grant, etc., to them, which is in fieri at the time of their marriage, and completed, by livery of seisin or attornment, during the coverture." "The husband and wife have not either a joint estate, a sole or several estate, nor even an estate in common. From the unity of their persons by marriage, they have the estate entirely as one individual, and on the death of one of them, the entire tenement will, for all the estate of which they are seized in this manner, belong to the survivor, without the power of alienation or forfeiture of either alone, to prejudice the right of the other." (1 Preston on Estates, 131.) tireties as though its only origin was by gift, is altogether unaccountable. Mr. Jickling, on the very next page after giving the definition first quoted, speaks of estates acquired by husband and wife on a purchase by them both, evidently using the word purchase in a sense which did not include the idea of a gift. And certainly of the many cases upon this subject to be found in the reports, not one implies that this estate is necessarily founded upon a gift. A tenancy by entireties arises whenever an estate vests in two persons, they being, when it so vests, husband and wife.' It is not essential that they should be married when the grant or gift is made, if thereafter, when the gift vests, they are husband and wife. Hence, if a devise be made to a man and woman, and before the death of the testator they marry, or if a feoffment be made to them while they are single, of which livery is made after marriage; or if they recover on a voucher to warranty annexed to an estate of which they were joint-tenants—in all these cases, they take by entireties.? 3 264. Difference between Joint-Tenancy and an Estate by Entirety. A joint-tenancy is distinguished by four unities; a tenancy by entirety by five. The former may be vested in any number of natural persons more than two; the latter can be vested in but two natural persons, and these two are regarded as but one in law. Joint-tenants take by moieties-each is seized of an undivided moiety of the whole: husband and wife take each an entirety, and are seized per tout but not per my. Joint-tenants may each alien his interest in the estate husband and wife must alienate jointly. The former may sever their estates at pleasure: the latter hold an estate which, while it remains theirs, is inseverable. The former can have partition; but the latter cannot, unless indeed in a divorce proceeding severing their matrimonial rela In this description of tenancy by entirety, we have excluded the idea that the tenancy must be created by gift or purchase. Though not ordinarily acquired by descent, this is so only because husband and wife rarely succeed to property as heirs of the same person. But, on so acquiring it, they are tenants by entireties. (Gillan v. Dixon, 65 Pa. S. 395.) * Jickling Anal. L. & Eq. Estates, 252; Co. Litt. 187; Nicholls v. Nicholls, cited Vin. Abr. BARON & FEME; Plowd. Comm. 483. 3 Topping r. Sadler, 5 Jones, 357. tions. The former may succeed to his cotenant's moiety by right of survivorship, while upon the decease of either of the spouses, the other continues holding the entire estate. "A conveyance to husband and wife creates neither a tenancy in common nor a joint-tenancy. The estate of joint-tenants is a unit made up of divisible parts: that of husband and wife is also a unit, but it is made up of indivisible parts. In the first case, there are several holders of different moieties or portions, and upon the death of either, the survivor takes a new estate. He acquires by survivorship the moiety of his deceased cotenant. In the last case, though there are two natural persons, they are but one person in law, and upon the death of either, the survivor takes no new estate. It is a mere change in the legal properties of the person holding, and not an alteration in the estate holden. The loss of an adjunct merely reduces the legal personage holding the estate to an individuality identical with the natural person. The whole estate continues in the survivor the same as it would continue in a corporation after the death of one of the corporators. This has been the settled law for centuries."2 As tenancy by entirety is not noticed as a distinct tenancy in many standard works upon the common law, it may be insisted that it is but a species of joint-tenancy. The differences between the two already pointed out in this section, it seems to us, conclusively establish that they must be classified as independent cotenancies. But if our theory needs any further support, this support is found in the fact that all the English adjudications upon this subject, as well as all the earlier writers upon the common law, assert that husband and wife cannot, by any words of limitation, however well chosen for that purpose, receive an estate as joint-tenants.3 1 Doe v. Garrison, 1 Dana, 35; Shaw r. Hearsey, 5 Mass. 521; Hemingway v. Scales, 42 Miss. 1; Taul v. Campbell, 7 Yerg. 333. Stuckey v. Keefe's Exrs. 26 Pa. S. 399; Gibson v. Zimmerman, 12 Mo. 385; Simpson v. Pearson, 31 Ind. 1. 3 See authorities considered and cited in 6 71. Mr. Ram, in his Outline of the Law of Tenancy and Tenure, treats of tenancy by entireties as a separate species of tenancy, but undertakes to prove that husband and wife are not tenants by entireties, but joint-tenants. The position has been hazarded, that husband and wife, tenants by entireties, are joint-tenants. It should be observed, however, that this appears contrary to a received notion of tenancy by entireties, and this idea is sanctioned by the concurrence of opinion of writers of the 2 65. Tenancy by Entirety in the United States.-The common law in regard to estates by entirety is at this day in force in the majority of the States of the American Union. It has not been abolished nor encroached upon by any of the statutes in reference to joint estates. From an inspection of those statutes, it will be discovered that quite a number of them contain exceptions showing that they do not apply to first eminence. But that tenants by entireties are joint-tenants may be thought to follow from a consideration of the following points, in which the common jointtenancy and a tenancy by entireties have a perfect agreement. If A grants to B and C 100 acres in joint-tenancy, he conveys to B and C to hold jointly. If A grants to D and E his wife 100 acres, (not to hold in common,) he conveys to D and E his wife jointly. B is a tenant, and C is a tenant. So, it is apprehended, D is a tenant, and E tenant. B with C, and C with B, are seized of the whole 100 acres; are seized per tout. B and C are jointly tenants to the præcipe. D and E are jointly tenants to the præcipe. Survivorship takes place between B and C. Survivorship takes place between D and E. "In these points, there appears not a shade of difference between the tenancy of B and C, and the tenancy of D, and E his wife. B and C are joint-tenants; then why are not D and E? That which distinguishes a tenancy by entireties from a common joint-tenancy is this: that tenancies by entireties are not seized per my. They are seized per tout only. But because they are not seized per my, does it follow they are not joint-tenants? The common joint-tenants are seized per my; but would they be less joint-tenants if not seized per my? What is it that constitutes a joint-tenancy? A joint seisin per tout. It is not a seisin per my which makes a joint-tenancy. Without that, the common joint-tenants would still be joint-tenants. Because tenants by entireties are not seized per my, is surely no reason to make them not joint-tenants. A learned writer says, tenants by entireties have not either a joint estate, a sole or several estate, nor even an estate in common. With great submission, it may be contended that the joint-estate is precisely the estate which they have. The estate of tenants by entireties is more a joint-estate than the estate of common joint-tenants; for whereas the common joint-tenants are seized per my et per tout, tenants by entireties are seized per tout only. If tenants per my et per tout have a joint estate, à fortiori tenants per tout have." After thus reasoning to demonstrate that husband and wife are joint-tenants, Mr. Ram argues that they are not tenants by entireties, because if they are to be regarded as one person in law, the act of one is the act of both; the mind of one the mind of both; and the conveyance of one the conveyance of both; whereas, the estate acquired during coverture by husband and wife cannot be transferred or prejudiced without the assent of both; and he concludes his description of this tenancy as follows: "If the persons of these tenants are one, there seems to be an inconsistency in calling them tenants by entireties. One person can have but one seisin, one entirety. The view taken of a tenancy by entireties is shortly this: "That the husband and wife are joint-tenants. “That their tenancy is a species of joint-tenancy. "That like other joint-tenants, they are seized per tout. "But unlike other joint-tenants, they are not seized per my. "As seized per tout, that their persons are several. "As not seized per my, but one only. ..That they are joint-tenants and tenants by entireties, because each is seized per tout. "That they are called tenants by entireties to distinguish them from the jointtenants seized per my et per tout." (Ram's Tenure and Tenancy, 170-4.) estates granted or devised to husband and wife. But, independent of any express exceptions, they have been almost uniformly confined in their operations to joint-tenancies. The reasons advanced for holding that estates by entirety are not included in these statutes are: 1st, the statutes apply to joint-tenancies only; 2d, they apply only to estates held by two or more, whereas estates by entirety are, in the eyes of the law, vested in one person; 3d, they apply to estates of which a severance can be made, while this estate of husband and wife is inseverable; and 4th, because the wrongs intended to be avoided by the statute arise from joint-tenancy alone; and 5th, because, while a joint-tenancy "is prejudicial to the Commonwealth and repugnant to the genius of Republics," tenancies by entirety are not. On account of the language of the statutes, in a few instances, but more frequently without any aid from the statutes, and because of the reasons already suggested, tenancy by entirety has been recognized in the States of Illinois,' Indiana,2 Kentucky", Maine, Massachusetts, Michigan, Mississippi, Missouri, North Carolina, New York, 10 New Jersey," Pennsylvania," Tennessee, Vermont," Virginia," and Wisconsin. 16 In Upper Canada, a statute of 1834 enacted that all land granted to two or more 5 6 Mariner v. Saunders, 5 Gilm. 124; Lux v. Hoff, 47 Ill. 427. 4 13 Davis v. Clark, 26 Ind. 424; Arnold v. Arnold, 30 Ind. 305; Jones v. Chandler, 40 Ind. 588. Doe v. Garrison, 1 Dana, 35; Rogers v. Grider, Ib. 242; Moore v. Moore, 12 B. Monr. 664; Babbitt v. Scroggin, 1 Duval, 274. By statute of this State, in force since 1850, husband and wife take as tenants in common, unless a right by survivorship is expressly provided for. (Genl. St. ed. of 1873, p. 531, sec. 13.) This statute does not affect estates acquired prior to its passage. (Elliott v. Nichols, 4 Bush, 502.) Greenlaw v. Greenlaw, 13 Me. 186; Harding v. Springer, 14 Me. 407. 5 Shaw v. Hearsey, 5 Mass. 521; Fox v. Fletcher, 8 Mass. 274; Varnum v. Abbot, 12 Mass. 478. Fisher v. Provin, 25 Mich. 347. 7 Hemingway v. Scales, 42 Miss. 1; 2 American Reports, 586. 8 Gibson v. Zimmerman, 12 Mo. 386; Garner v. Jones, 52 Mo. 68. Woodford v. Higly, 1 Wins. 237; Todd v. Zachary, 1 Busbee Eq. 286. 10 Wright v. Sadler, 20 N. Y. 320. Den v. Hardenberg, 5 Halst. 44; Thomas v. De Baum, 1 McCarter Ch. 40. Robb v. Beaver, 8 Watts & S. 127; Auman v. Auman, 21 Pa. St. 347; Bates v. Seely, 46 Pa. St. 249. 13 Taul v. Campbell, 7 Yerg. 319; Ames v. Norman, 4 Sneed, 692. 14 Brownson v. Hull, 16 Vt. 309. 15 Thornton v. Thornton, 3 Rand, 179. 16 Ketchum v. Walsworth, 5 Wis. 95; Bennett v. Child, 19 Wis. 364. |
