King v. Greene

• Decision Date: 30 June 1959
• Docket Number: A--106
• Parties: , 75 A.L.R.2d 1153 Marie KING, Plaintiff-respondent, v. Joseph M. GREENE, Mabel Greene, Margaretta P. W. Harrison, John Cusick and Elaine Cusick, Defendants-Appellants. No
• Court: New Jersey Supreme Court

Page 395

30 N.J. 395

153 A.2d 49, 75 A.L.R.2d 1153

Marie KING, Plaintiff-respondent, v. Joseph M. GREENE, Mabel Greene, Margaretta P. W. Harrison, John Cusick and Elaine Cusick, Defendants-Appellants.

No A--106.

Supreme Court of New Jersey.

Argued March 17, 1959.

Reargued June 1, 1959.

Decided June 30, 1959.

John Warren, Jr., Red Bank, argued the cause for defendants-appellants (Parsons, Labrecque, Canzona & Combs, Red Bank, attorneys for defendants-appellants Greene and Cusick; Burton T. Doremus, Red Bank, attorney for defendant-appellant Harrison).

Patrick J. McGann, Jr., Red Bank, argued the cause for the plaintiff-respondent (Applegate, Reussille, Cornwell & Hartman, Red Bank, attorneys).

Brief filed on behalf of New Jersey Title Ins. Ass'n, amicus curiae, by Maurice A. Silver and Donald B. Jones, Newark, (Donald B. Jones, also argued orally for amicus curiae).

The opinion of the court was delivered by

BURLING, J.

This is an action seeking possession of lands, damages for mesne profits and a declaration that a mortgage encumbrance held by defendant Margaretta P. W. Harrison is a nullity and directing its discharge of record. The Superior Court, Law Division, hearing the matter on stipulated facts, granted plaintiff's motion for summary judgment. Defendants appealed, and while pending and prior to argument in the Appellate Division, we certified the cause on our motion. After argument in this court, we directed that the cause be reargued and requested that the New Jersey Title Insurance Association appear as Amicus curiae.

The following facts are stipulated: In 1913 plaintiff, Marie King, acquired the title to three lots on Patterson Avenue in the Borough of Shrewsbury, New Jersey. In 1931 her husband, Philip King, brought an action against her in the Court of Chancery which resulted in a degree being entered that plaintiff owed him $1,225. It was further ordered that plaintiff execute a conveyance of the three lots to herself and her husband as tenants by the entirety. While the conveyance was never made, the decree was recorded, the self-operative effect of which was to make Marie and Philip King become seized of the premises as tenants by the entirety. R.S. 2:29--61 (now N.J.S. 2A:16--7, N.J.S.A.).

In 1932 execution was issued to satisfy the 1931 money judgment and a sheriff's deed was made to John V. Crowell of all plaintiff's right, title and interest in the property. In 1933 Philip King conveyed his right, title and interest in the three lots to Martin Van Buren Smock. John V. Crowell and his wife joined in the deed to Smock, conveying their interest acquired by virtue of the sheriff's deed. Philip King died in 1938. In 1946 Smock conveyed his interest to defendants Joseph and Mabel Greene.

In 1957 plaintiff, as surviving spouse of Philip King, instituted the present action for possession, contending that she is the sole owner of the property and that the 1932 sheriff's deed conveyed only one-half the rents, issues and profits of the property during the joint lives of the spouses and did not convey her right of survivorship. She alleges that when her husband died in 1938 the life estate for the joint lives of the spouses terminated and she became entitled to the fee. Defendants' contention is that the sheriff's deed conveyed plaintiff's right of survivorship as well as a life interest.

The trial court concluded that the sheriff's deed did not include the right of survivorship and entered a summary judgment for plaintiff which declared that she is the present holder of a fee simple in the premises; that a mortgage upon the premises held by defendant Margaretta Harrison and given by the defendants Joseph and Mabel Greene is discharged; that defendants John and Elaine Cusick, the Greenes' tenants, must vacate the premises and that plaintiff is entitled to mesne profits for six years prior to the commencement of this action.

The question at issue is whether the purchaser at an execution sale under a judgment entered against the wife in a tenancy by the entirety acquires the wife's right of survivorship.

It is conceded by all parties to this appeal, as indeed they must, that the two most recent Holdings on the question at issue, Zanzonico v. Zanzonico, 24 N.J.Misc. 153, 46 A.2d 565, 166 A.L.R. 964 (Sup.Ct.1946); Dworan v. Miloszewski, 17 N.J.Super. 269, 85 A.2d 550 (Cty.Ct.1952), are to the effect that a purchaser at execution sale of the wife's interest in an estate by the entirety does not acquire the wife's right of survivorship, so that upon the death of the husband the purchaser's rights are extinguished. Since neither of the two cases was determined in a court of last resort and since the law on the question has been in considerable confusion we shall undertake a re-examination of the question.

Involved are two fundamental problems: (A) the nature of an estate by the entirety at common law, and (B) the effect upon the estate by the entirety of the Married Women's Act (L.1852, p. 407, now R.S. 37:2--12 et seq., N.J.S.A.)

A--Estates by the Entirety at Common Law.

At the outset we note that the industry of counsel and our own independent research have failed to reveal any English case decided prior to 1776, touching upon the question of whether a voluntary or involuntary conveyance of a husband's interest in a tenancy by the entirety carries with it his right of survivorship.

The unique form of concurrent ownership at common law, labeled estates by the entirety, may be traced into antiquity at least as far back as the 14th and 15th Centuries. 3 Holdsworth, History of the English Law (3d ed. 1923), 128; Kepner, 'The Effect of an Attempted Creation of an Estate by the Entirety in Unmarried Grantees, 6 Rutgers L.Rev. 550 (1952). The estate was unique because of the common-law concept of unity of husband and wife and the positing of that unity in the person of the husband during coverture. Putnam, 'The Theory of Estates by the Entirety,' 4 Southern L.Rev. 91 (1879). A husband and wife cannot hold by moieties or in severalty, said Littleton, 'and the cause is, for that the husband and wife are but one person in law. * * *' Coke on Littleton, sec. 291. Blackstone, in his judicial capacity, noted:

'This estate (entirety) differs from joint-tenancy, because joint-tenants take by moieties, and are each seised of an undivided moiety of the whole, per my et per tout, which draws after it the incident of survivorship or jus accrescendi, unless either party chooses in his life-time to sever the jointure. But husband and wife, being considered in law as one person, they cannot, during the coverture take separate estates; and therefore upon a purchase made by them both, they cannot be seised by moieties, but both and each has the entirety. They are seised of their respective moieties, but both and each has the entirety. They are seised per tout, and not per my.' Green v. King, 2 Wm. Blackstone 1211, 1214, 96 Eng.Rep. 713, 714 (C.P. 1777).

To the same effect see the opinion of Chancellor Kent in Rogers v. Benson, 5 Johns. Ch. 431 (N.Y.1821).

The unity of the spouses theory was early recognized in New Jersey as the foundation upon which estates by the entirety rested. Den ex dem. Hardenbergh v. Hardenbergh, 10 N.J.L. 42 (Sup.Ct.1828).

By virtue of the Jus mariti and Jure uxoris the husband was the dominant figure in the marital unity. Thus, in an estate by the entirety the husband had absolute dominion and control over the property during the joint lives. The husband was entitled to the rents, issues and profits during the joint lives of himself and his wife, with the right to use and alienate the property as he desired, and the property was subject to execution for his debts. Washburn v. Burns, 34 N.J.L. 18 (Sup.Ct.1869) (it should be noted that although Washburn was decided after the Married Women's Act, the court overlooked the effect of the act and decided the case on common-law principles); Freeman, Co-Tenancy and Partition (2d ed. 1888) 140; 2 American Law of Property, § 6.6, p. 28 (1952); Phipps, 'Tenancy by Entireties,' 25 Temple L.Q. 24, 25 (1951). As stated by the court in Washburn v. Burns, supra:

'* * * the husband has an interest which does not flow from the unity of the estate, and in which the wife has no concern. He is entitled to the use and possession of the property during the joint lives of himself and wife. During this period the wife has no interest in or control over the property. It is no invasion of her rights, therefore, for him to dispose of it at his pleasure. The limit of this right of the husband is, that he cannot do any act to the prejudice of the ulterior rights of the wife.' (34 N.J.L. at page 20.)

The remaining question is, could the husband unilaterally alienate his right of survivorship at common law? Our study of the authorities convinces us that he could. The entire thrust of the authorities on the common law, with one notable exception, is to the effect that the only distinction between a joint tenancy and a tenancy by the entirety at common law was that survivorship could not be affected by unilateral action in the latter estate.

It was settled in England as early as the 14th Century that the husband could not defeat the wife's right of survivorship. In that case, reported in 2 Coke on Littleton, sec. 291, William Ocle was found guilty of treason (he murdered Edward II) and his estate was forfeited. Edward III granted the forfeited lands (owned jointly with the wife) to someone else. It was held that the husband's act of treason could not deprive the wife of her right of survivorship. Back v. Andrew, 2 Vern. 120 (1690), stands for the same proposition. But to say that the husband cannot by his voluntary or involuntary act defeat the wife's right of survivorship is not to say that his own right of survivorship, subject to wife's right of survivorship, should he predecease her, cannot be alienated. The notion that the husband could not alienate...