Settle v. Settle

• Decision Date: 02 November 1925
• Docket Number: No. 4199.,4199.
• Citation: 8 F.2d 911,56 App. DC 50
• Parties: SETTLE v. SETTLE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

56 App. DC 50, 8 F.2d 911 (1925)

SETTLE v. SETTLE.

No. 4199.

Court of Appeals of District of Columbia.

Submitted October 6, 1925.

Decided November 2, 1925.

G. C. Gertman, of Washington, D. C., for appellant.

W. W. Millan and R. E. L. Smith, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

MARTIN, Chief Justice.

The appellant and appellee are husband and wife, and the sole question in the case is whether either one is entitled to a partition of certain real estate situate within the District of Columbia, now owned by them in undivided interests.

The title to the property was acquired by the parties during coverture by conveyances from Joseph H. Amberger and wife. On August 11, 1919, a written contract was executed by and between the Ambergers and Harry Thomas Settle, the appellant, whereby upon certain considerations the former covenanted to convey said property to the latter "in full and fee-simple title," covenanting furthermore "that the conveyance to be made as named to the said Harry Thomas Settle, if made, shall be made to him with his wife, Anna Edith Settle, and the survivor of them, as joint tenants in fee-simple titles of equal interests in the land conveyed in such conveyance." The Ambergers thereupon executed and delivered two deeds of conveyance to Harry Thomas Settle and Anna Edith Settle, his wife. The first deed granted a part of the property to them, "and the survivor of them, as joint tenants, in fee-simple interests in equal shares in said land." The second deed granted the remainder to them "as joint tenants, in fee-simple titles of equal interests therein."

On May 16, 1924, the appellant, as plaintiff, brought suit against his wife for a partition of the lands, setting out the foregoing facts. Upon motion of the defendant the court dismissed the bill, holding that the parties were tenants by entireties in the lands, and accordingly that neither was entitled to a partition thereof. The appellant now challenges this ruling, contending that the parties hold the property as joint tenants, but not by the entirety, and that he is entitled to a partition of it. This presents the sole question in the case.

We agree with the decision of the lower court. In our opinion, under such conveyances, husband and wife take as tenants by the entirety at common law, and this rule still prevails in the District of Columbia. "Undoubtedly, at common law, husband and wife did not take, under a conveyance of land to them jointly, as tenants in common or as joint tenants, but each became seized of the entirety, per tout, et non per my, the consequence of which was that neither could dispose of any part without the assent of the other, but the whole remained to the survivor under the original grant." Mr. Chief Justice Fuller, in Hunt v. Blackburn, 128 U. S. 469, 9 S. Ct. 126, 32 L. Ed. 488, citing 2 Bl. Com. 182; 2 Kent's Com. 113; 1 Washburn, Real Prop. (4th Ed.) 672.

The tenancy by entireties is essentially a joint tenancy, modified by the common-law theory that husband and wife are one person. Tiffany, Real Property, vol. 1, § 194. One of the principal common-law rules of construction in relation to such tenancy is that the same words of conveyance which would make other grantees joint tenants will make husband and wife tenants by entireties. Green v. King, 2 W. Bl. 1211. Hence at common law, under a conveyance to husband and wife as "joint tenants," they do not take as simple joint tenants, but as tenants by entireties. In such case a petition for the partition of the property will not lie. Hoag v. Hoag, 213 Mass. 50, 99 N. E. 521, Ann. Cas. 1913E, 886.

It is plain that, if the common-law doctrine of tenancy by entireties, as above defined, prevails in the District of Columbia, the appellant is not entitled to a partition of these lands. It cannot be disputed that this doctrine was imported into the early common law of the District, but it has been contended that it was first modified by the Married Woman's Act, and afterwards abolished by section 1031 of the District Code.

In Loughran v. Lemmon, 19 App. D. C. 141, 147, this court said: "There is nothing in the ...