Diver v. Diver
| Decision Date | 04 November 1867 |
| Citation | 56 Pa. 106 |
| Parties | Diver <I>versus</I> Diver. |
| Court | Pennsylvania Supreme Court |
Before THOMPSON, STRONG, READ and AGNEW, JJ. WOODWARD, C. J., absent
Error to the Court of Common Pleas of Armstrong county: No. 76, to October and November Term 1867.
E. S. Golden, for plaintiff in error, cited Broad v. Broad, 2 Chan. Ca. 98, 161; Ruscombe v. Hare, 6 Dow's Parl. Cas., 1 Vern. 213; 2 Id. 437, 120; 2 Roll. Abr. 447, 798; Co. Litt. 47; 4 Cruise Dig. 140, 141; 5 Rep. 57; Swanton v. Raven, 3 Atk. 105; Ferree v. Commonwealth, 8 S. & R. 315; Pratt v. Lewis, 4 Whart. 22; Robb v. Beaver, 8 W. & S. 109; Benedict v. Montgomery, 7 Id. 238; Act April 11th 1848, Purd. 699, pl. 11, et seq., Pamph. L. 536; 2 Black Com. 182; 8 Rep. 71, b.; Act March 31st 1812, § 1; 5 Sm. L. 395; Stuckey v. Keefe, 2 Casey 397; Martin v. Jackson, 3 Casey 504; Acts April 11th 1856, § 3, Purd. 702, pl. 29, Pamph. L. 315; April 15th 1851, § 22, Purd. 701, pl. 19, Pamph. L. 675; Rangler v. Hummel, 1 Wright 130; Pettit v. Fretz, 9 Casey 118; Bear v. Bear, Id. 525; Walker v. Reamy, 12 Id. 410; Rancord v. Kuhn, Id. 383; Manderbach v. Mock, 5 Id. 43; Stoner v. Zimmerman, 9 Harris 402; Hoar v. Axe, 10 Id. 381; Rhoads v. Gordon, 2 Wright 277; Amperse v. Burdeno, 5 Am. L. Reg. N. S. 275; Martin v. Jackson, 3 Casey 504; Bates v. Seely, 10 Wright 248; Arnold v. Jack, 12 Harris 57.
The court declined to hear J. Boggs, for defendant in error. He cited in his paper-book Peck v. Ward, 6 Harris 506; Thorndell v. Morrison, 1 Casey 326; Ulp v. Campbell, 7 Harris 361; Stoops v. Blackford, 3 Casey 214; Davis v. Davis, 10 Wright 342; Stehman v. Huber, 9 Harris 260; McKinney v. Hamilton, 1 P. F. Smith 63; 2 Black. Com. 147; Freestone v. Parratt, 5 T. R. 654; 8 Rep. 71; 2 Vern. 120; Robb v. Beaver, 8 W. & S. 111; Stuckey v. Keefe, 2 Casey 397; Martin v. Jackson, 3 Id. 504; Auman v. Auman, 9 Harris 347; Mahon v. Gormley, 12 Harris 82; Pettit v. Fretz, 9 Casey 121; Bear v. Bear, Id. 525; Glidden v. Strupler, 2 P. F. Smith 400; Amperse v. Burdeno, 5 Am. L. Reg. 275.
The opinion of the court was delivered, November 4th 1867, by
It is conceded (unless the Act of April 11th 1848, commonly called "The Married Woman's Act," has changed the rule) that under a deed to husband and wife, the grantees do not take by moieties, but each becomes seised of the entirety, holding "per tout et non per my." This is a necessary consequence of the legal doctrine that a husband and wife are one person. Hence, on the death of either, the whole estate remains in the survivor, nothing descending to the heirs of the decedent. Nor does the Act of March 31st 1812, which abolished survivorship among joint tenants, apply to such an estate, for it is not a joint tenancy: Robb v. Beaver, 8 W. & S. 107; Auman v. Auman, 9 Harris 343.
But it is said the Act of 1848, by destroying the legal unity of the husband and wife, has converted such an estate into a tenancy in common; that is, that such a deed conveys a different estate from that which the same deed would have created, if made prior to the passage of the Act. To this we cannot assent. It mistakes alike the letter and the spirit of the statute, imputing to it a purpose never intended. The design of the legislature was single. It was not to destroy the oneness of husband and wife, but to protect the wife's property, by removing it from under the dominion of the husband. To effectuate this object, she was enabled to own, use and enjoy her property, if hers before marriage, as fully after marriage as before. And the act declared that if her property accrued to her after marriage, it should be owned, used and enjoyed by her, as her own separate property, exempt from liability for the debts and engagements of her husband. All this had in view the enjoyment of that which is hers, not the force and effect of the instrument by which an estate may be granted to her. It has nothing to do with the nature of the estate. The act does not operate upon rights accruing to her until after they have accrued. It takes such rights of property as it finds them, and regulates the enjoyment; that is, the enjoyment of the estate after it has vested in the wife. And the mode of authorized enjoyment is significant. It is to be as her separate property is enjoyed, as property settled to her separate use. The act therefore no more destroys her union with her husband than does a settlement of property for her separate use. To a certain extent she is enabled, but no more than is necessary, to protect her property after it has been acquired. We have held that she can convey her lands only by joining in a deed with her husband: Pettit v. Fretz, 9 Casey 118. This is a clear recognition of the existing unity of the two. It need not be repeated that no greater effect is to be given to the Act of 1848 than its language and spirit demand. It is a remedial statute, and we construe it so as to suppress the mischief against which it was aimed,...
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...and prevailing opinion in this country. 13 R. C. L. 1101, § 124; 2 Thompson on Real Property 952, § 1747; 30 C. J. 567, § 101. In Diver v. Diver, 56 Pa. 106, one of the earliest which gave consideration to the matter, Judge Strong, subsequently a Justice of the Supreme Court of the United S......
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