Morris v. McCarty

• Decision Date: 05 January 1893
• Citation: 32 N.E. 938,158 Mass. 11
• Parties: MORRIS et al. v. McCARTY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 11

32 N.E. 938

MORRIS et al. v. McCARTY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 5, 1893

The tenant claims title under a deed to himself and alleged wife, Mary Ann McCarty, as "tenants by the entirety, and not as tenants in common." The demandants claim title as heirs of their mother, the said Mary Ann McCarty, and base their claim on the fact that the alleged marriage between the said Mary Ann and John McCarty was void and that John and Mary Ann McCarty, not being man and wife held the land under the aforesaid deed as tenants in common.The case was heard without a jury, and the court made the following report. "I find the facts to be as follows: (1) The plaintiffs are children, and the only heirs of Mary Ann McCarty, the alleged wife of the tenant, John McCarty. (2) A deed of the aforesaid land was made to the tenant and Mary Ann McCarty, his alleged wife, the material parts of which are as follows: 'Know all men by these presents, that we, George Curtis and Solomon Bolster trustees, in consideration of twenty-five hundred dollars, to us paid by John McCarty and Mary Ann McCarty, wife of the said John, hereby grant, bargain, sell, and convey unto the said John McCarty and Mary Ann McCarty, as tenants by the entirety, and not as tenants in common, a certain parcel of land,' etc.; 'to have and to hold the above-granted premises, with all the privileges and appurtenances thereto belonging, to the said John McCarty and Mary Ann McCarty, as tenants by the entirety, and not as tenants in common, and their heirs and assigns, to their own use and behoof forever. Dated Jan. 16, 1886.' (3) At the time the marriage ceremony took place between said John and Mary Ann McCarty, in 1875, said Mary Ann was married to Daniel Leahy, who was then and continued for some years to be alive. That said Mary Ann and John McCarty continued to live together as man and wife. And the parties agree that it may be assumed that all the parties to the above deed believed that the two were husband and wife, but I find that they, the said John and Mary Ann, were never legally married. (4) Said Daniel Leahy and Mary Ann McCarty both died before the date of this writ. I refuse to rule that, on the above facts, the said John and Mary Ann McCarty took as tenants in common, and I find for the tenant."

COUNSEL

Wm. H. Brown, for demandants.

W.S. Frost, for tenant.

OPINION

ALLEN J.

The deed could not have the effect to create an estate in entirety, because the grantees were not in fact husband and wife, though described as such by the grantor. The question therefore, is...