Fulper v. Fulper

• Decision Date: 19 June 1896
• Citation: 34 A. 1063,54 N.J.E. 431
• Parties: FULPER v. FULPER et al.
• Court: New Jersey Supreme Court

34 A. 1063

54 N.J.E. 431

FULPER

v. FULPER et al.

Court of Errors and Appeals of New Jersey.

June 19, 1896.

(Syllabus by the Court.)

Appeal from court of chancery.

Bill by William Fulper against James B. Fulper and others. Decree for defendants, and complainant appeals. Reversed.

George H. Large, for appellant.

Henry A. Fluck, for respondents.

GUMMERE, J. The complainant in this case filed his bill for the partition of certain lauds in the county of Hunterdon, which were conveyed on May 9, 1834, to his parents, Asher and Jane Fulper, "as tenants in common." Both grantees are now dead, Asher Fulper having survived his wife, who died intestate. The husband, however, left a will, by which he devised the whole of his real estate to five of his children, disinheriting the remaining one, the complainant, who, the will declared, "shall take nothing under this will." The complainant bases his right to a partition of the lands in question upon the fact that he is one of the heirs at law of his mother, and, as such, the owner of an undivided interest therein. His ownership is challenged by his brothers and sisters, the ground of their contention being that, notwithstanding the fact that the lands were conveyed to their parents as tenants in common, they, by force of law, held them as tenants of the entirety, and that, therefore, upon the death of their mother, the whole estate became vested in their father, by right of survivorship, as tenant in fee simple.

The learned advisory master who heard the case adopted the view advanced by the defendants, and held that the complainant had no interest in the lands which he sought to have partitioned, following the decision of the supreme court of Pennsylvania in Stuckey v. Keefe's Ex'rs, 26 Pa. St. 397, which holds that, in consequence of the theoretic unity, and entirety of the ownership, of the husband and wife with respect to their interest in lands, they cannot hold by moieties, and that, where land is conveyed to them in common, they take an entirety of estate, without regard to the intent appearing in the conveyance. The decision in Stuckey v. Keefe's Ex'rs rests upon the ground that there are certain incidents to a tenancy in common which cannot exist in an estate held by husband and wife. Those incidents are said to be that tenants in common may sell their respective shares; that they are compellable to make partition; that they are liable to reciprocal actions of waste and account that, if one turns the other out of possession, an action of ejectment will lie. And it is said that, where lands are held by a husband and wife jointly, he cannot sell his moiety free from her dower, nor can she sell hers at all without his consent, and that no action of partition or account or waste or ejectment can be maintained by one against the other. The fact that a husband cannot sell his moiety of lands held jointly with his wife, free from her dower, and that she cannot sell hers at all without his consent, does not seem to afford a substantial reason for concluding that they cannot therefore hold lands as tenants in common. The same fact is equally true of lands held by either the husband or wife in severalty, and yet it has never been suggested that this fact would operate to prevent lands from being so held by a married person.

Nor does it seem to me that the fact of the inability of the husband or wife to maintain an action of partition or of waste or of ejectment or of account against the other (admitting that such inability exists) justifies the conclusion that they cannot hold as tenants in common. The reason why, at common law, an action could not be maintained by the wife against the husband for an accounting of the rents and profits of an estate held by him and her, or for the joint possession thereof, was not because of anything characteristic of the estate so held, but because the husband, by the jus mariti, was entitled to the exclusive possession of his wife's land during her life, and to the rents and profits thereof, whether held by her jointly with him or in severalty. Hiles v. Fisher, 144 N. Y. 306, 39 N. E. 337. So far as the husband is...