Brownson v. Hull

The opinion of the court was delivered by Royce, J. The extent of the plaintiff’s right depends on the nature of her estate, acquired under the deed to herself and husband. If she took but the estate of a tenant in common with her husband, she has recovered to the extent of her right. But if she took the [312] estate of a joint tenant with him, or an estate to which the jus'accrescendi was incident, she is now entitled to the whole by surviv» orship. There appears to be no doubt, that, by the common law, a conveyance to husband and wife vests in them a peculiar estate, not corresponding with a tenancy in common, nor fully with a joint tenancy ; but approaching much nearer to the latter than the former. It agrees with a joint tenancy in the distinguishing feature of survivorship, but differs from it in the entirety of title, as well as seisin, of each grantee in the whole estate; they have but one title, and each owns the whole. Joint tenants are said to be seized per tout et per my, which means that each tenant has a seisin of the whole, but a title only to his aliquot part. A further difference con» sists in the want of power in the husband or wife, without the other’s concurrence, to convey to any third person, and thus to sever the tenancy. Co. Lit. 187. 2 Bl. 182. Doe v. Parrott, 5 T. R. 654. 4 Kent’s Com. 362. But it is insisted that the law was altered in this state by the statute of A. D. 1797, which enacted, that a conveyance to two or more persons should be construed to create a tenancy in common, and not a joint tenancy, unless the. instrument of conveyance should expressly provide otherwise. That act was founded in a principle of policy in favor of the estate in common, as being more consonant to the genius of republics, which is generally recognized in this country. Statutes to the same effect, and expressly based upon this policy, exist in other states. Yet those statutes have been holden not to affect conveyances to husband and wife. As the policy in favor of destroying joint tenancies can have little or no application to this class of conveyances, courts have felt it to be their duty, in considering cases like the present,, to expound these statutes according to the strict legal import of the terms used. Such a conveyance has accordingly been excluded from the operation of the statute on two grounds ; 1, because the estate created by it is not in legal contemplation an estate in joint tenancy, and therefore not the estate upon which the statute-was professedly designed to operate; 2d, because' it is not in a legal sense a conveyance to two persons, but to those who, for this purpose, are accounted but one person in law. Jackson v. Stevens, 16 Johns. [313] 110, Sutliff v. Forgey, 1 Cow. 89. De Peyster v. Howland, 8 Cow. 277. Shaw v. Hearsay, 5 Mass. 521. Fox v. Fletcher, 8 Ib. 274. Varnum v. Abbot, 12 Ib. 474. Draper v. Jackson, 16 Ib. 480. We are disposed to follow these authorities, in preference to the one cited from Connecticut, which appears to proceed mainly upon general usage in that state. The argument urged in behalf of creditors has the'less weight, if, as we suppose, the estate is liable to attachment and execution at all times during the joint lives of the owners, subject, indeed, to uncertainty as to the value of the debtor’s interest. But such uncertainty attends every life estate, and most other defeasable or contingent estates. . The result is, that, as the plaintiff has survived her husband, we consider her entitled to the whole tract of land, for which the action was brought. This conclusion must lead to a reversal of the judgment below, without regard to the question, whether all the defendants were shown to be holding in subordination to the plaintiff’s title. Judgment reversed, and the cause remanded to the county court.