Rogers v. Grider
| Decision Date | 06 May 1833 |
| Parties | Rogers v. Grider. |
| Court | Kentucky Court of Appeals |
FROM THE CIRCUIT COURT FOR WARREN COUNTY.
Messrs Morehead and Brown for Appellant.
Mr Crittenden for Appellee.
Judge Underwood did not sit in this case.
Statement of the case.
Robert Moore conveyed a tract of land adjoining the town of Bowlinggreen, to his son-in-law and daughter, Martin Grider and wife, which was afterwards sold under executions against Grider, in his life time, and Rogers became the purchaser. After Grider's death, Mrs. Grider filed her bill against Rogers. claiming, first, the whole of the land; and if she was not entitled to that, then one moiety, to be allotted to her in severalty, and dower out of the other moiety. The circuit court, considering her entitled to the whole, decreed a release of the claim to Rogers to her.
This decree has been assailed in argument on two grounds. First That Grider and wife took the title under the conveyance from Moore, as joint tenants, and, therefore, according to the terms of the act of 1796, 2 Dig. 686, the interest of Grider did not, and could not, even if there had been no previous sale of his interest under execution, accrue to his wife at his death. Second: That if Mrs. Grider is entitled to the whole, then the court had no jurisdiction to give her relief.
The first point was otherwise ruled by this court, at the present term in the case of Ross v. Garrison and wife. (Ante, 35.) That case was not argued at the bar, and we had to dispose of it without the benefit of any suggestion from counsel against the view there taken. We were, therefore, glad to find it again arising in this case, and meeting a full discussion at the bar, thereby enabling us to review our decision upon a question of so much importance, before it had gone out, and with the aid of such objections as counsel could urge against it; The result of the discussion and our subsequent investigation, has been to confirm us in the impression of the correctness of our decision.
The position there assumed, that a conveyance to husband and wife does not make them joint tenants, but that they hold by what is termed a tenancy by entireties, is fully sustained, not only by the opinion of Coke, 1 Inst. 1861, for which he cites adjudged cases before his time, and in which he is followed by all the approved text writers, but by several modern adjudications, both in England and the United States. The distinction is not merely ideal and arbitrary, but is founded in a substantial difference. One of the incidents of joint tenancy was the right of each of the joint tenants to alienate his interest, thereby sever the joint...
To continue reading
Request your trial
-
Cochran and Fulton v. Kerney and Wife
...would have no power to alienate it so as to defeat or in any way affect the rights of the wife in case she should outlive him (Rogers v. Grider, 1 Dana, 242); but he could convey the entire estate during the coverture, and if he should survive the wife his conveyance would become as effecti......