Town of Corinth v. Emery
| Decision Date | 12 September 1891 |
| Citation | 22 A. 618,63 Vt. 505 |
| Parties | TOWN OF CORINTH v. LOREN EMERY |
| Court | Vermont Supreme Court |
MAY TERM, 1891
Judgment reversed, and judgment for the defendant.
Smith & Sloane, for the defendants.
The plaintiff claims an interest in the demanded premises by virtue of a levy of, and sale upon, an execution in its favor against the defendant. The defendant's interest in the premises, at the time of the levy and sale arose under a deed conveying the premises to himself and wife. It is conceded that the estate created by the deed was one by entirety. This estate, created by conveyance to husband and wife, is a peculiar one. The interest of the grantees is not joint, nor in common. The parties do not hold moieties, but take as one person, taking as a corporation would take; they have but one title; each is seized of the whole and each owns the whole. If one dies the estate continues in the survivor, the same as if one of several corporators dies. It does not descend upon the death of either, but the longest liver, being already seized of the entire estate, is the owner of it. One tenant by entirety cannot sever the tenancy by deed, as a joint tenant can, for neither can alien so as to bind the other. Our statute of partition, R. L., s. 1275, does not extend to this estate; and a conveyance to husband and wife is expressly excepted from the operation of the statute, R. L., s. 1917 abolishing joint tenancies. If the husband be attainted, his attainder does not effect the right of the wife, if she survive him. Divorce vinculo does not destroy the estate, and the jus accrescendi takes effect, upon the death of the one first dying. As an illustration of the rule that there are no moieties between husband and wife and that they take as one person, it may be stated that when land is conveyed to husband and wife and a third person, the husband and wife take but a moiety, the third person taking a like moiety. The following citations may be referred to for authorities touching the characteristics of this estate: Co Litt. 187; Bacon's Abr. Joint Ten. (B); 2 Cruise R. P. s. 35; 2 Bl. Com. 182; 4 Kents Com. 362; Nichols v. Nichols, 2 Plowd. 483; Skinner 182; Doe ex dem v. Parratt, 5 Term. R. 652; Doe v. Wilson, 4 Barn. & Ald. 303; Dias v. Glover, Hoff Ch. 71; Rogers v. Benson, 5 Johns. Ch. 431; Den ex dem. v. Hardenbergh, 10 N.J.L. 42, and note in 18 Am. Dec. 369; Taul v. Campbell, 7 Yer. 318; Fairchild v. Chastelleux, 1 Pa. 176; Stuckey v. Keefe's Exrs., 26 Pa. 397; McCurdy v. Canning, 64 Pa. 39; Wright v. Saddler, 20 N.Y. 320; Appeal of Lewis (Mich.) 48 N.W. 580; Chandler v. Cheney, 37 Ind. 391.
The doctrine of survivorship in case of tenancies by entirety has been repudiated in Ohio and Connecticut. Sergeant v. Steinberger, 2 Ohio 305; Phelps v. Jepson, (Conn. 1769) 1 Root 48; Whittlesey v. Fuller, 11 Conn. 337. The Connecticut Court admits that it is the doctrine of the English law, and seems to base its decisions upon local customs and usage. The rule has been altered, in some respects, by legislation in the States of Iowa and Illinois.
The rule is recognized in Vermont, in Brownson v Hull, 16 Vt. 309; is stated by Barrett, J., to be settled law, in Davis v. Davis, 30 Vt. 440; and cited approvingly in Park v. Pratt, 38 Vt. 545. The plaintiff insists that the defendant was entitled to the use, income and profits of the estate during his life, that he had a life estate in the property, and that it was subject to levy and sale upon an execution against him alone. Such undoubtedly is the common law. The husband, during his life, is entitled to the usufruct of the real estate belonging to his wife, and no doubt by that law, can convey such life estate, or encumber it, and it may be taken upon execution against him alone. This rule was in force in this state in 1844, when Brownson v. Hull, supra, was decided, and Royce, J., stated that he supposed the estate was liable to attachment and execution at all times during the joint lives of the owners; and by this we understand he meant, that the life estate of the husband could be taken upon his sole debts, but not so as to affect the right of the wife, should she survive him. But the Legislature soon enacted that the rents, issues and profits of the real estate of any married woman, and the interest of her husband in her right in any real estate which belonged to her before marriage, or which s...
To continue reading
Request your trial