Hemingway v. Scales

Peyton, J., delivered the opinion of the court. It appears from the record in this case, that on the 11th day of January, 1858, Augustus O. Winn, and Ann J. Winn, his wife, for a valuable consideration, sold and conveyed to W. N. Scales, and M. J. Scales, his wife, and their heirs, a certain tract or parcel of land, situated on the Yazoo river, in the county of Carroll, in the State of Mississippi, and that the deed of conveyance was duly acknowledged; that the said W. N. Scales departed this life in the year 1861, intestate, and that the plaintiff in error was duly appointed administrator de bonis non of said Seales by the Probate Court of said county of Carroll, and that at the May term, 1867, of said Probate Court, the estate of the said W. N. Scales, deceased, was, by the said court, declared insolvent, and decreed to be sold for the payment of debts. And that on the 29th day of August, 1867, the plaintiff in error, as administrator, as aforesaid, instituted an action of ejectment in the Circuit Court of said county, against the defendant [16] in error, to recover tbe possession of an undivided half of tbe land conveyed to her and her husband as aforesaid. To this action, the defendant appeared and pleaded not guilty, upon which the cause went to trial, which resulted in a verdict and judgment for the defendant. From this judgment the plaintiff brings the cause into this court by writ of error, and makes the following assignments of error: — 1. The court erred in refusing the instructions asked for by. the plaintiff. 2. The court erred in overruling the plaintiff’s motion for a new trial. It is agreed by the parties to waive the question of the right of the plaintiff to bring the action of ejectment, and that the effect of the conveyance to the defendant and her husband shall be the sole question presented for the decision of this court. The first error assigned is the refusal of the court to give the following instruction: “ Tenancy by the entirety does not exist under the laws of Mississippi; and if the jury believe, from the evidence, that the deed conveying the tract of land, mentioned in the declaration, was made to W. N. Scales, and wife jointly, then said Scales and wife took said land as joint-tenants at common law, and not as tenants of the entirety, and consequently on the death of W. N. Scales, intestate, his half-interest descends to his heirs, and does not survive to his wife; and on this state of facts, if the jury believe they exist, they will find for the plaintiff.” The common law forms the basis of our system of jurisprudence, and remains in force until repealed, changed, or modified by statute. It clearly recognizes the distinction between the estates of joint-tenants, and.that of husband and wife upon a conveyance to them. In the case of joint-tenants in fee-simple, each would have a right, without the consent of the other, to dispose of an undivided moiety of the inheritance. But in the case of a conveyance of land in fee-simple to a man and his wife, they take not by moieties, but by entireties; and whilst the' husband may do what he pleases with the rents and profits [17] during coverture, lie cannot dispose of any part of the inheritance without his wife’s concurrence. It is insisted by counsel for the plaintiff in error, that the common law, in' this respect, has beén changed by our statute, which provides that “ all conveyances or devises of lands made ■ to two or more persons, shall be construed to create estates in common, and not in joint-tenancy, unless it shall manifestly appear, from the tenor of the instrument, that it was intended to create an estate in joint-tenancy, with the right to the survivor or survivors.” Eev. Code, 309, art. 18. This provision, however, does not apply to conveyances, made in trust. The evident purpose' of this statute was.to abolish the jus ac-ct'escendi, the right of survivorship,- — -the distinguishing feature of j oint-tenancy, — so that the estate of the j oint-tenant, upon his. death, might descend to his heirs, as in ease of tenancy in .common. It merely -converted a joint-tenancy into a tenancy in common. It made no change in the law with regard to the estate of husband and wife, which, as has been seen, is a very different estate from that of joint-tenancy. It, therefore, does not apply to conveyances to husband and wife, which, in legal construction, by reason of the unity of husband and wife, are not strictly j oint-tenancies, but conveyances to one person. The hus- band and the wife are seized of the entirety, and the survivor takes the whole*; and during their joint lives neither of them can alien so as to bind the other. Nor is such an estate, so held by husband and wife, affected by the statutes of partition. 4 Kent, 3G2. . In the case of the Farmer s’ and Mechanics’ Bank of Rochester v. Gregory, 49 Barbour, 155, the court say that “ it is a very clear proposition that our recent statutes for the better protection of the separate property of married women, have no relation to or effect upon real estate conveyed to husband and wife jointly. In such a case the wife has no separate estate, but is seized, with the husband, of .the entirety. Neither of them having any seperate or severable part or portion, but the two, as one in law, holding the entire estate, neither can sell without the consent of the other; and the survivor takes the whole.” [18] In the State of New York, it has been decided that a statute, ■ similar to our own, converting joint-tenancies into tenancies in common, does not apply to. the conveyance of an estate in land to Inisband and wife. They are regarded in law as one person, and not as joint-tenants or tenants in common; and when one of them dies the whole estate created by such a conveyance remains in the survivor. Wright v. Sadler, 20 N.Y. 320, 323. Our statute is applicable to such estates only as were hold in joint-tenancy at the common law, and was not intended to affect conveyances to husband and wife ; for the reason that the estate created by such conveyance is not, in legal contemplation, an estate in joint-tenancy, and for the additional reason, that such conveyance to' husband and wife 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. With a due regard to the rule that statutes in derogation of the common law are to be construed strictly, we think the statute cannot properly be construed to comprehend conveyances of land made to husband aud wife. ’ With respect to such estates the common law remains in force, unaffected by the statute. Brownson v. Hull, 16 Vt. 309; Needham v. Branson, 5 Wedell’s Law, 426. Under the conveyance in this case, the defendant in error, having survived her husband, is entitled to'the whole estate. There is no' error, therefore, either in refusing the instruction asked by the plaintiff, or in overruling the plaintiff’s motion for a new trial. The judgment will be affirmed.