Ames v. Chandler

• Decision Date: 04 January 1929
• Citation: Ames v. Chandler, 265 Mass. 428, 164 N.E. 616 (Mass. 1929)
• Parties: AMES v. CHANDLER et al.
• Court: Supreme Judicial Court of Massachusetts

265 Mass. 428

164 N.E. 616

AMES

v.CHANDLER et al.

Supreme Judicial Court of Massachusetts, Plymouth.

Jan. 4, 1929.

Appeal from Land Court, Plymouth County; Joseph J. Corbett, Judge.

Writ of entry by Jesse E. Ames against Arthur H. Chandler and another. From an adverse decision, defendants appeal. Reversed.

R. B. Heavens, of Plymouth, for appellant.

E. Field, of Boston, for appellees.

RUGG, C. J.

This is a writ of entry against defendants who are husband and wife. The tenant, Arthur H. Chandler, by duly recorded deed dated October 25, 1921, undertook to convey the demanded premises from himself as grantor to the tenants ‘Arthur H. Chandler and Glendora F. Chandler, husband and wife, as joint tenants and not as tenants in common.’ The demandant claims title under a sheriff's deed dated September 9, 1927, whereby were sold by proceedings on execution, regular in every particular according to law, all the right, title and interest which said Arthur H. Chandler on January 14, 1927, had in the demanded premises described in the deed first mentioned. No question of procedure has been raised and none is considered. We treat the case, as have the parties in their arguments, as raising for determination the nature of the estate, if any, conveyed by the first mentioned deed.

It is elementary that at common law a husband could not convey land directly to his wife. See Thatcher v. Omans, 3 Pick. 521, 527, 531, 532, 534. This common law has been modified by statute. It was provided by St. 1912, c. 304, now G. L. c. 209, § 3, in substance that conveyances of real estate other than mortgages between husband and wife shall, upon due record of deed thereof, be valid to the same extent as if they were sole. It further was provided by St. 1918, c. 93, now G. L. c. 184, § 8, that ‘real estate, including any interest therein, may be transferred by a person to himself jointly with another person in the same manner in which it might be transferred by him to another person.’

The last-mentioned statute does not permit a husband to convey a tenancy by the entirety in real estate to himself and his wife, because it is inherent in the conception of a tenancy by the entirety that the husband and wife are one person and not separate persons. That conception, implicit in the common-law idea of a tenancy by the entirety, has continued without interruption to the present moment. See Licker v. Gluskin (Mass.) 164 N. E. 613, this day decided, where the nature of a tenancy by the entirety is stated with ample citation of the authorities. Hence it would be a contradiction of terms to say that a husband could convey real estate to himself and his wife as tenants by the entirety under a statute authorizing such conveyance to himself and ‘another person.’ The wife in a tenancy by the entirety is not ‘another person,’ but the same indivisible legal entity with the husband. Both are seized of such an estate per tout et non per my as one person.

The statute first mentioned likewise does not authorize a husband to make conveyance to his wife of a tenancy by the entirety. It authorizes conveyances between husband and wife as if ‘they were sole.’ A tenancy by the entirety cannot exist between persons who are sole. It can exist only between those who are husband and wife. A statute authorizing conveyances between husband and wife as if ‘they were sole’ cannot confer power to create an estate which exists and can exist only on the basic idea that they are not sole but are one person. Bernatavicius v. Bernatavicius, 259 Mass. 486, 156 N. E. 685, 52 A. L. R. 886, and cases there collected.

Giving the utmost effect to the two cited statutes in combination they do not enable a husband to convey an estate by the entirety to himself and his wife. The reasons already stated require this result. These statutes were not designed to abolish by indirection, or to enable the creation of, estates by the entirety. They have ample scope for their operation in enabling conveyances of the ordinary kind. The words of the statutes separately and in combination ought to be interpreted according to the common and approved usage of the language. See v. Building Commissioner of Springfield, 246 Mass. 340, 343, 141 N. E. 105. Attributing to them this meaning, they do not, in our opinion, authorize the conveyance by the husband to himself and his spouse of an estate by the entirety.

Doubtless under the cited statutes a husband might convey land to himself and his wife as tenants in common. The habendum in the deed here under consideration forbids that interpretation because it runs to the grantees by name, ‘husband and wife, as joint tenants and not as tenants in common.’ Therefore it cannot be construed as creating a tenancy in common. If this deed were from a third person to a husband and wife it would create a tenancy by the entirety although that characteristic word is not used. The reasons for that result are set out at length in Hoag v. Hoag, 213 Mass. 50, 99 N. E. 521, Ann. Cas. 1913E, 886, in a learned opinion by Mr. Justice Hammond. But, as already pointed out, it is impossible under the law to treat this deed running from the husband to himself and his wife, however worded, as creating a tenancy by the entirety.

The phrase of the habendum clause in the present deed, standing alone, apart from the relation of husband and wife, would create a joint tenancy. That is a well-recognized form of tenancy. Commonly it exists between persons who are not husband and wife. It is recognized by G. L. c. 184, § 7. It must be created by apt words. Nash v. Cutler, 16 Pick. 491, 497;Stimpson v. Batterman, 5 Cush. 153, 155;Park v....