Mardt v. Scharmach

Pound, J. Plaintiff’s title is objected to because she originally held the real property in question as seized" of the entirety with her husband, Herman Mardt, who is still alive. The husband’s interest was sold on execution under and by virtue of a judgment for alimony and costs obtained by plaintiff against him in an action for a separation. Such interest was bought in by one McIntyre, plaintiff’s attorney in the action, who assigned the sheriff’s certificate of sale to plaintiff, to whom the sheriff executed a deed of the husband’s interest in said real estate. I am of the opinion that the plaintiff’s title is good. The peculiar estate known as tenancy by the entirety is still recognized in this State. Bertles v. Nunan, 92 N. Y. 152. Husband and wife so holding are each seized of the whole estate with the right of survivorship. It has been said that no right of independent alienation exists in either spouse, and that the deed of one separately conveys no title. Zorntlein v. Bram, 100 N. Y. 12; Jooss v. Fay, 129 id. 11, 22. But the rule is clearly established that the interest of the husband is subject to sale on execution, the purchaser taking subject to the wife’s right of survivorship. Beach v. Hollister, 3 Hun, 519. And that such interest may be mortgaged without the consent of the wife and sold on foreclosure sale. Hiles v. Fisher, 144 N. Y. 306. And that a conveyance by the husband to the wife of his interest in lands so [126] held is good. Meeker v. Wright, 76 N. Y. 262; Donahue v. Hubbard, 154 Mass. 537; Hardwick v. Salzi, 46 Misc. Rep. 1. I find a dictum in Alies v. Lyon, 216 Penn. St. 604, 606, that the wife cannot oust the husband of his interest in property held by the entirety by buying in the same on execution sale. But the same case holds that absolute divorce has no effect upon tenancy by the entirety, while in Hew York such a divorce changes it to a tenancy in common. Stelz v. Sehreck, 128 N. Y. 263. The right of independent alienation by legal process, subject to the right of survivorship, is now as plainly recognized in this State as the right of the husband to convey directly to the wife. In this case the sheriff’s deed is the deed of the husband, and it vests in the wife the entire estate. It follows that plaintiff’s title is good and she is entitled to judgment accordingly. Judgment for plaintiff.