Jooss v. Fey

• Decision Date: 01 December 1891
• Citation: 129 N.Y. 17,29 N.E. 136
• Parties: JOOSS v. FEY et ux.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 17

29 N.E. 136

JOOSS

v.FEY et ux.

Court of Appeals of New York.

Dec. 1, 1891.

Appeal from city court of Brooklyn, general term. Reversed.

The facts fully appear in the following statement by GRAY, J.:

Action of partition. The defendants, Christian Fey and Louise Fey, are husband and wife, and in 1882 they bought the premises described in the complaint, each contributing to the purchase money from his and her own property. The words of grant were to them, ‘the parties of the second part, as joint tenants, and to their heirs and assigns, forver;’ and the habendum clause was to them ‘as joint tenants, and not as tenants in common.’ Subsequently Louise, the wife, conveyed her interest in the premises to the plaintiff. The court below, at trial and at general terms, held that the action could not be maintained, on the ground that the defendants had acquired and held the premises as tenants by the entirety, and the wife could not convey as she did. The plaintiff appealed to this court.

H. C. Conrady, for appellant.

James C. Church, for respondents.

GRAY, J., ( after stating the facts as above.)

Prior to the passage of the various acts by the legislature of this state for the benefit of married women, (in the years 1848, 1849, 1860, and 1862,) the common-law rule obtained that, by a conveyance to husband and wife, they could only take and hold the estate as tenants by the entirety. It was immaterial to affect the quality of their holding whether the estate was given to them or acquired by their joint purchase. Words of grant, which, to separate persons, would convey in joint tenancy, to husband and wife would convey by entireties. They could not take and hold otherwise. They were seised each of the whole, and neither could sell without the consent of the other. Williams, Real Prop. 208; 2 Kent, Comm. pp. 110, 132; Jackson v. Stevens, 16 Johns. 113, 115. This estate of tenancy by the entirety has but one feature in common with that of a joint tenancy, and that is in the right of survivorship. In all other essential respects they differ. The estate, which vests by virtue of a grant jointly to husband and wife, is peculiarly the result or product of the marriage relation, and depends for its continuance upon the unity of man and wife. Lately, at our October term, we had occasion in Steltz v. Shreck, 28 N. E. Rep. 510, to consider the effect upon this tenancy by the entirety of the severance of the marriage relation by a divorce, and we held that husband and wife then held as tenants in common. This result, it was considered, flowed logically from the peculiar cause for the tenancy by the entirety. It depended upon the continuance of the marriage relation, and ceased with its cessation. When the married women's acts were passed, the effect was to relieve them from various disabilities under which they were at common law, and to qualify them, to the extent specified in the acts, to act as unmarried women might with respect to their separate estates, and to vest them with the same capacity for the acquisition of a separate property as though they were unmarried women. The disabilities were not wholly removed; but only to the extent that the statutes, by their plain reading, must be taken to have changed the common law as affecting the legal status of married women. By section 3, c. 200, Laws 1848, as amended by chapter 375, Laws 1849, it was provided that ‘any married female may take by inheritance, or by gift, grant, devise, or bequest, from any other person than her husband, and hold to her sole and separate use, and convey and devise, real and personal property, or any interest or estate therein, and the rents, issues, and profits thereof, in the same manner and with like effect as if unmarried,’ etc.

The subsequent legislation of 1860 (chapter 90) and 1862 (chapter 172) provided that all property owned by, coming to, or acquired by a married woman, as her separate property, ‘shall, notwithstanding her marriage, be and remain her sole and separate property, * * * and shall not be subject to the interference or control of her husband, or liable for his debts,’ and that she may sell and convey such property as if she were unmarried. In Meeker v. Wright, 76 N. Y. 262, it was considered by the learned judge, who delivered the opinion in that case, that this legislation had abrogated the common-law rule governing a conveyance to husband and wife. But in that view a majority of the judges did not concur,...