Jennie D. Sargent v. Gordon J. Platt And Marion M. Platt

• Decision Date: 07 May 1940
• Citation: 13 A.2d 195,111 Vt. 185
• Parties: JENNIE D. SARGENT v. GORDON J. PLATT AND MARION M. PLATT
• Court: Vermont Supreme Court

13 A.2d 195

111 Vt. 185

JENNIE D. SARGENT v. GORDON J. PLATT AND MARION M. PLATT

Supreme Court of Vermont

May 7, 1940

February Term, 1940.

Married Women.---1. Estate by the Entirety, P. L. 3076, 3079.---2. Covenant of Seisin by Tenant by Entirety, P. L. 3074.---3. Separation of Lots Purchased for One Consideration.---4. Recovery for Breach of Covenant of Seisin.

1. By No. 90 of the Acts of 1919 (now part of P. L. 3076) a married woman has a separate estate in property conveyed to herself and her husband as tenants by the entirety, P. L. 3079.

2. A wife who acquired her interest in an estate by the entirety subsequent to the effective date of No. 90 of the Acts of 1919 (P. L. 3076) may join in a covenant of seisin in a warranty deed thereof and is equally liable with her husband for its breach---P. L. 3074.

3. In an action for breach of covenant where the evidence of value introduced concerned various parcels of land including two parcels that the plaintiff acquired for one consideration, the title to one of the parcels being defective, and in which there was no evidence of the value of the other parcel, a jury could not apply the rule of proportionment without speculation and conjecture, which is insufficient foundation for a verdict.

4. Where a plaintiff acquired two parcels of land for one consideration, she is not entitled to recover the full consideration for breach of covenant of seisin of one parcel where there is evidence of some value to the other parcel.

COVENANT for breach of covenant of seisin. Trial by jury September Term, 1939, Franklin County Court, Cushing, J presiding. Verdict and judgment for the plaintiff, exceptions to the defendants. The opinion states the case.

Judgment reversed and cause remanded.

Wm. R. McFeeters and P. C. Warner for the defendants.

H. J. Holden for the plaintiff.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

SHERBURNE

This is an action against defendants, who are husband and wife, for a breach of covenant of seisin. In 1933 the plaintiff purchased of the defendants a rectangular lot in Highgate with a frontage of 50 feet and a depth of 60 feet. By the deed in question, dated April 2, 1934, a strip of land 10 feet wide and 60 feet deep, adjoining the above lot on the north, was conveyed, also another lot of land 60 feet wide, adjoining on the east side of the above lot combined with the 10 foot strip, and having depth of about 78 feet. Although the plaintiff claimed failure of title to a strip 10 feet by 138 feet along the entire north side of both lots, the court only submitted to the jury the failure of title to the above strip 10 feet wide by 60 feet deep. Verdict and judgment were for the plaintiff, to which the defendants excepted.

The first question briefed has to do with the right to maintain this action against the defendant Marion M. Platt. This question was saved by a number of exceptions, but it is only necessary to call attention to the exception to the overruling of her motion for a directed verdict. This motion set forth that she and her husband were tenants by the entirety and that she had no sole and separate interest, and hence that she was unable to make a contract or covenant relative to the land conveyed which would be binding upon her personally.

In Citizens' Savings Bank & Trust Co. v. Jenkins, 91 Vt. 13, 19, 20, 99 A. 250, hereafter referred to as the Jenkins case, it is shown by our cases that a husband has a freehold interest in the real estate of his wife, not held to her sole and separate use, and is entitled to its management and control and to the rents and profits thereof. This is also supported by later cases. Reynolds v. Bean, 91 Vt. 247, 99 A. 1013; Fadden v. Fadden, 92 Vt. 350, 103 A. 1020; City of Barre v. Town of Bethel, 102 Vt. 22, 27, 145 A. 410; Roberge v. Town of Troy, 105 Vt. 134, 142, 163 A. 770. The Jenkins case then goes on and says that "this doctrine applied at common law to an estate by entirety, and determined the marital rights of the husband in the real estate so owned by the wife, and the doctrine has been applied in this State when we have had no statute inconsistent therewith," citing Corinth v. Emery, 63 Vt. 505, 22 A. 618, 25 Am. St. Rep. 780; and Laird v. Perry, 74 Vt. 454, 52 A. 1040, 59 L.R.A. 340. Basing its conclusions upon Corinth v. Emery, supra, a case decided when a statute similar to that re-enacted by No. 45 of the Acts of 1902, now P. L. 3079, was in force, the Jenkins case holds: "Under our statutes in relation to the property of married women as they now are, and our holdings applicable to such statutes, a married woman holds as separate, or as is sometimes said in construing similar statutes, as her quasi-separate property, her interest in property of which she and her husband are tenants by entirety, and her estate so held is held to the exclusion of the common law marital rights of her husband therein. "

Shortly after the decision of the Jenkins case, it was held in Pope v. Hogan, 92 Vt. 250, 256, 257, 102 A. 937, relative to tenants by entirety, that the husband has, during the joint lives of himself and wife, a freehold interest by which he taken the possession and usufruct of the whole property as marital rights, and that during this period the wife has no control over the property and no interest therein, except the right of homestead (if there be one) and the right of survivorship. The conflict between these cases is unimportant to the decision of the present case because of No. 90 of the Acts of 1919, now a part of P. L. 3076. That act amended G. L. 3523, and after restating that a married woman may convey or mortgage by her separate deed the real estate of which she is seized in her own right to her sole and separate use, provided that "A married woman may, by her sole deed, convey or mortgage and may manage and control any other real estate hereafter acquired by her, except that a homestead interest therein and the real estate of which she is seized jointly with her...