Cloos v. CloosCloos v. Cloos
- Reporters:
- , , , ,
- Before:
- Pratt
Thе common-law rule that where lands are conveyed to husband and wife jointly they hоld as tenants by the entirety still prevails in this state, and has not been abrogated by the vаrious acts of the legislature with respect to married women. Bertles v. Nunan, 92 N. Y. 152; Zorntlein v. Bram, 100 N. Y. 12, 2 N. E. Rep. 388. That husband аnd wife may hold lands as joint tenants, or as tenants in common, would seem to be reсognized by chapter 472, Laws 1880. When they so hоld, an action in partition will lie at the suit of either against the other. Moore v. Moore, 47 N. Y. 467.
The only questiоn in this case is whether the two deeds which сonveyed the premises in question created a joint tenancy by the entirety аs to those lands. The deed of August 1,1884, is between Mary Driscoll as grantor and Bernard Cloos and Sophie Cloos as grantees, “аs joint tenants, and notas tenants in commоn.” It conveys to them, “their heirs and assigns, forever.” The deed of April 23, 1887, is between John Farley as grantor and Bernard Cloos and Sоphie Cloos as grantees, “as joint tenants,” and conveys to them, “their heirs and аssigns, forever.” In this deed the habendum clause is to thе grantees, “their heirs and assigns, forever, аs joint tenants, and not as tenants in comrqоn.” It seems very clearly to have beеn the intention of the parties to create a joint tenancy. We think such a tеnancy was created, unless it is impossible for husband and wife to take other than by the entirety where they take under one deed. We do not understand that such a disability exists where apt words are used in the conveyance. Hicks v. Cochran, 4 Edw. Ch. 107; McDermott v. French, 15 N. J. Eq. 78. To the same effeсt are 1 Washb. Real Prop. c. 13, § 6; 4 Kent, Comm. 363; аnd Prest. Est. 132. In Bertles v. Nunan, the conveyance was to husband and wife, their heirs and *661assigns, without designating any particular аs to each. It simply gave them the fee; and the court of appeals held that they took as tenants by the entirety, under the common law. It does not seem to us that the court intended to decide, or in fact did decide, in that case, that husband and wife could not take by deed eithеr as joint tenants or as tenants in commоn, where proper words were used. We are therefore of opinion thаt the court at special term erred in dismissing the complaint. The judgment appealed from should be reversed, and a new trial be ordered, with costs to abide the event.