Hoag v. Hoag

• Decision Date: 16 October 1912
• Citation: Hoag v. Hoag, 213 Mass. 50, 99 N.E. 521 (Mass. 1912)
• Parties: HOAG v. HOAG.
• Court: Supreme Judicial Court of Massachusetts

213 Mass. 50

99 N.E. 521

HOAG v. HOAG.

Supreme Judicial Court of Massachusetts, Hampden.

October 16, 1912

COUNSEL

H. T. Richardson, of Boston, for petitioner.

D. E Webster, of Springfield, for respondent.

OPINION

HAMMOND J.

The only question is whether, under the deed from McKnight and Churchill, the grantees, being then husband and wife, took an estate by entirety. If they did, then the petition should be dismissed; otherwise there should be partition.

At common law, 'if an estate be given to a plurality of persons, without adding any restrictive, exclusive or explanatory words, as if an estate be granted to A. and B and their heirs, this makes them immediately joint tenants in fee of the lands.' 2 Bl. Com. 180. But where in a deed to two or more persons there was express language indicating that joint tenancy was not intended, then there was a tenancy in common. 2 Bl. Com. 193.

St 1783, c. 52, being the first upon the subject, after reciting that 'the principle of survivorship established by the rules of the common law in cases where lands and other real estate are, or may be held, in joint tenancy has been found by experience to work great injustice in various instances, and that the reasons, upon which the said principle was originally founded, have long ceased to exist,' declared (section 4) that 'the said principle of survivorship shall no longer be in force in this commonwealth.' But this act seems to have been subsequently regarded as a little too drastic, and it was repealed by St. 1785, c. 62, which restored the existence of joint tenancy, but provided in substance (section 4) that all conveyances and devises of lands made to two or more persons shall be construed to create estates in common unless it be expressed therein that the grantees shall take a joint estate. And thus the law so far as now material continued until St. 1885, c. 237, hereinafter to be considered. Rev. Sts. c. 59, §§ 10 and 11; Gen. Sts. c. 89, §§ 13 and 14; Pub. Sts. c. 126, §§ 5 and 6. It was early adjudged that the statute of 1785 did not include grants and devises to husband and wife (Shaw v. Hearsey, 5 Mass. 521); nor, before foreclosure, mortgages given to secure a joint debt (Appleton v. Boyd, 7 Mass. 131).

By St. 1885, c. 237, however, an amendment was made to Pub. Sts. c. 126, §§ 5 and 6, by inserting in section 5 and by striking out in section 6 the words 'or to husband and wife,' so that these sections should read respectively as follows: (Section 5) 'Conveyances and devises of lands made to two or more persons, or to husband and wife, shall be construed to create estates in common and not in joint tenancy, unless it is expressed in such conveyance or devise that the grantees or devisees shall take the lands jointly, or as joint tenants or in joint tenancy, or to them or the survivor of them.' (Section 6) 'The preceding section shall not apply to mortgages nor to devises or conveyances made in trust, nor to a devise or conveyance in which it manifestly appears from the terms of the instrument that it was intended to create an estate in joint tenancy.' The legal effect of the amendment was to include in the terms conveyances and devises those made to husband and wife. The law as thus amended has ever since continued. R. L. c. 134, § 6.

The deed under consideration was made in 1893, and therefore must be construed in the light of that statute so far as applicable. Did the grantees, being husband and wife, take an estate by entirety?

From the history of the legislation upon this subject, starting with St. 1785, c. 62, and ending in St. 1885, c. 237, it plainly appears that it was not the intention to abolish tenancy in common or joint tenancy, or tenancy by entirety, nor in any way to change the common-law characteristics of either. Each remained as before, as a lawful mode of holding real estate. The simple purpose was to change the rules of construction of the language used in conveyances and devises of real estate. And the change was to be in the presumption arising out of such language. Whereas at common law the presumption (in the absence of an expression of a contrary intent) was that a joint tenancy was created, under the statute the presumption (in the absence of an expression of a contrary intent) was that a tenancy in common was created. In the law as to presumption, tenancy in common was substituted for joint tenancy. The distinction was made between a tenancy in common and a joint tenancy, and not between the usual form of joint tenancy existing between two or more persons and that form existing between husband and wife.

In the deed in question the grantees are described as husband and wife. The grantors must be taken therefore to have known that this relation existed. They were making a deed to husband and wife and they knew it. The habendum is to the grantees 'as joint...