Donahue v. Hubbard

Allen, J. Prior to the St. of 1885, c. 237, a conveyance of land to husband and wife created the peculiar title sometimes called an estate by entireties, or in entirety. Neither could sever this title so as to defeat or prejudice the title of the survivor. Pray v. Stebbins, 141 Mass. 219, and cases cited. We find nothing, however, to show that it has ever been considered that a husband could not convey his title through a third person to his wife. On the other hand, the peculiar feature of this kind of estate is that each is secure against an impairment of rights through the sole act of the other. 2 Bl. Com. 182. Cruise Dig. tit. 18, c. 1, §§ 44-49. 1 Preston, Est. 131. 2 Kent Com. 132; 4 Kent Com. 362. 1 Washb. Real Prop. (3d ed.) 425. There is nothing in this to prevent the wife’s acquiring the title of her husband, and in Meeker v. Wright, 76 N. Y. 262, 272, it was held that this might be done. This part of the decision in Meeker v. Wright was not questioned in Bertles v. Nunan, 92 N. Y. 152, or in Zorntlein v. Bram, 100 N. Y. 12, and we have found nothing in any of the books denying the doctrine. Such a transfer of the husband’s title appears to have been made in the present case by the deeds of Daniel Donahue to Keane, and" of Keane to Mrs. Donahue. It is true that the statement of facts does not show in express terms that both of these deeds were a part of one and the same transaction, as it properly should have done. But the plaintiffs in their brief recite that the husband had released all his rights to his wife [539] through a conduit. The deeds were both executed on the same date; the consideration expressed was one dollar and other valuable considerations; the statement of facts recites that both of these conveyances were made with the knowledge and oral assent of Mrs. Donahue. We believe we should defeat the intention of the parties if we did not assume that the deeds were parts of one transaction, since the counsel for both parties have so assumed in their arguments. The effect was that the title vested in Mrs. Donahue. Her subsequent mortgages to George E. Hubbard were, therefore, valid, and he, upon a sale made under the power of sale contained in the first mortgage, might legally retain from the proceeds the sums due to himself under the two subsequent mortgages. This would still leave a small balance of $19.64 in his hands to be paid over to Mrs. Donahue. This, however, cannot be recovered in an action brought by her husband and herself jointly. Application may be made in the Superior Court for leave to amend by striking out the name of Daniel Donahue as co-plaintiff, and, if granted, Mrs. Donahue may have judgment for said sum; Fay v. Duggan, 135 Mass. 242; otherwise, the order must be, Judgment affirmed.