69 N.J. Eq. 629 | New York Court of Chancery | 1905
On May 17th, 1880, Eliza C. Aubry and three other persons executed a bond and mortgage for $16,000 to Louis Battais and
Counsel for the representatives of the wife argued that husband and wife were tenants by the entirety of the bond and mortgage, and thus took by survivorship. He relied upon the case of Buttlar v. Rosenblath, 42 N. J. Eq. (15 Stew.) 652, in which it was held that that species of tenancy still exists, notwithstanding the provisions of the Married Woman’s act. The case'was one of title to real estate. The case in hand is one of title to a chose in action, viz., a bond. The mortgage merely stands as a security for it.
Tenancy by the entirety arises where an estate in land- is devised to the husband and wife, or where a joint purchase is made by them during coverture, there being no words in the-devise or conveyance showing that the grantor intended them to take either as joint tenants or as tenants in common. Fulper v. Fulper, 54 N. J. Eq. (9 Dick.) 431. They are each seized of the entirety, and neither can sell without the consent of the other, and the survivor takes the whole. The characteristic features of this tenancy are survivorship and the equal interest of both in the fee or freehold—an interest indestructible by the husband. A conveyance of the fee by either without the other
If we contrast this estate with the imperfect right which the wife, at common law, had in a bond or other chose in action made payable to herself and her husband, the radical difference between them will at once appear.
Says Addison, in his excellent work on contracts (Add. Cont. (6th ed.) p. 753):
“Upon bonds and other personal contracts under seal, which have been entered into, during the coverture, with the wife separately or with the husband and wife jointly, the husband may sue alone, treating them as his own contracts, or he may elect to give the wife an interest therein and join her as co-plaintiff in the action.”
And further on (at p. 772) he says:
“She is also entitled, by survivorship, to0 the benefit of all contracts under seal, entered into, during the coverture, with herself alone or with her husband or herself jointly.”
The wife’s interest in an obligation of this sort differed, then, from her interest as tenant by the entirety of land in the particular that during the joint lives the obligation was regarded as so completely the property of the husband that in an action at law, although the contract was joint in form, he might sue for it in his own name without joining his wife. If it survived to his wife, it did so by his permission. To denominate such a right teuancy by the entirety is only misleading. It is not so called in any case of authority.
But the Married Woman’s act has entirely changed the old law. Section 3 reads as follows:
“The real and personal property and the rents, issues and profits thereof,' which any married woman has received or obtained since the 4th day of July, 1852, or which she shall hereafter receive or obtain by purchase, gift, grant, devise, descent, bequest or in any manner whatever, shall be her sole and separate property as though she were a single woman.”
The operation of this statute upon tenancy by the entirety has been somewhat peculiar. At common law, while husband and
Now it seems to me that, viewed in this aspect, the case cited has an important bearing upon the case under consideration. It is certain that the right of the married woman to an obliga
By the act, the wife, as against her husband, is to hold what she holds as her separate property. If husband and wife are deemed to hold choses in action, given to them jointly, by distinct moieties, each can, upon payment, receipt for one-half and hold the part receipted for in his or her own right. Suppose they should be deemed to hold as joint tenants, and the chose in action should be paid ofE, would they hold the fund realized and any investment of it as joint tenants, and -would it, too, be subject to the incident of survivorship? Would a-formal act, for example, a formal transfer, be needed to sever the tenancy ?
But the same result will follow, so far as the case in hand is concerned, from the application of another rule, much more limited in its application. Certainly there is nothing in the Married Woman’s act to indicate that it was the intention to create a joint tenancy in the case of a married woman where it would not have been held to exist in the case of other persons. If she should be regarded as standing in the same attitude to her husband as to any stranger, she would be entitled to only one-half of the principal and interest, for where the limitation or contract is, in point of form, such as, in ordinary cases, to create a joint tenancy at law, there are. several exceptions to the rule that survivorship will be permitted in equity. Obligations held by traders furnish a familiar instance. And among the other exceptions, an enumeration of which may be found in ElphinsLone on the Interpretations of Deeds (Rule 105, p. *282), is the case of persons advancing money on mortgage.
“This equitable doctrine (that equity leans strongly against joint ownership) is always applied to mortgagees. Where money is advanced by two or more persons, no matter whether in equal or unequal portions, and they take a mortgage to themselves jointly, in law their estate is joint and on the death of one the debt and the security would-belong wholly to the survivor. In equity, however, the interest of the mortgagees is in common, and on the death of one the survivor is held a trustee for the personal representatives of the deceased mortgagee.”
The case In the matter of Albrecht, 136 N. Y. 91, is very much ia point, and it is all the stronger because Buttlar v. Rosenblath followed Bertles v. Nunan, 92 N. Y. 152, where it had been decided that a statute very similar to ours had not abolished tenancy by the entirety. In the matter of Albrecht, it was held that where a husband and wife each furnished half the amount of a loan and took as security a bond and mortgage, payable to them jointly, upon the death of one of them the interest of the deceased vested, not in the survivor, but in the personal representatives of the deceased. It was said, “the just inference is that each regarded it as a loan of individual property upon the strength of the security taken, and they became tenants in common of the 'bond and mortgage, with all the rights and incidents of such a relationship,” and see Wait v. Bovee, 35 Mich. 425.
In the case in hand there is not the least evidence that the husband intended to make a gift to the wife. They are both dead. The transaction occurred twenty-five years ago. The evidence is meagre and inconclusive, but it would seem probable, from what is proved, that both advanced some money, and I think the presumption is that they did it in equal shares.
I am of the opinion, therefore, that one-half of the interest due belongs to the representatives of the husband and the other half to those of the wife.