after stating the case: The question presented for decision is whether a conveyance made by husband and wife, during coverture, to a trustee, for the use and benefit of the husband, of lands held by the entirety, is such a contract between a husband and wife, affecting the real estate or the capital of the personal estate of the wife, as comes under C. S., 2515, requiring the probate officer, as a condition precedent to the validity of the conveyance, to certify in his certificate of probate that, at the time of its execution and the wife’s privy examination, such contract was not unreasonable or injurious to her. The trial court held it to be such a contract, and that a failure to observe the requirements of the statute rendered it absolutely void.
Wallin v. Rice,
A satisfactory disposition of the case would seem to call for an examination into the basic character of an estate held by a husband and wife as such, or as tenants by the entirety as it is usually called'. It is conceded that the deed in question was executed for the purpose of enabling the husband to deal with the property as his own, freed from his wife’s interest therein.
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When land is conveyed or devised to a busband and wife as such, they take the estate so conveyed, or devised, as tenants by the entirety, and not as joint tenants or tenants in common.
Harrison v. Ray,
“A conveyance to busband and wife creates neither a tenancy in common nor a joint tenancy. Tbe estate of joint tenants is a unit made up of
divisible parts j
that of busband and wife is also a unit; but it is made up of
indivisible parts.
In tbe first case there are several holders of different moieties or portions, and upon tbe death of either, tbe survivor takes a new estate. He acquires by survivorship tbe moiety of bis deceased cotenant. In tbe last case, although there are two
natural
persons, tbey are but one person in
law,
and upon tbe death of either, tbe survivor takes no new estate. It is a mere change in tbe properties of tbe legal person bolding, and not an alteration in tbe estate bolden. Tbe loss of an adjunct merely reduces tbe
legal
personage bolding tbe estate to an individuality identical with tbe
natural person.
Tbe whole estate continues in tbe survivor tbe same as it would continue in a corporation after tbe death of one of tbe corporators.
*204 It will be observed that tbe estate may be held by husband and wife as such, and not otherwise, though it is not necessary that they be so described. 13 R. C. L., 1108. A husband is a man who has a wife; and a wife is a woman who has a husband. There can be no husband without a wife, and there can be no wife without a husband. As members of the marriage state, the only capacity in which they may take an estate by the entirety, the one cannot exist without the other. The two, in law and in fact, constitute but one “husband and wife.” 30 C. J., 562 et seq.; 13 R. C. L., 1114.
Chancellor Kent, in his Commentaries, describes this anomalous estate as follows: “If an estate- in land be given to the husband and wife, or a joint purchase be made by them during coverture, they are not properly joint tenants, nor tenants in common, for they are but one person in law, and cannot take by moieties. They are both seized of the entirety, and neither can sell without the consent of the other, and the survivor takes the whole”; and he cites Preston on Estates, which, with the authorities there collected, abundantly sustain his exposition of the. law.
“This species of tenancy is sui generis, and arises from the unity of husband and wife. As between them there is but one owner, and that is neither the one nor the other, but both together, in their peculiar relationship to each other, constituting the proprietorship of the whole, and of every part and parcel thereof. There can be no partition during the coverture, for this would imply a separated interest in each; and for the same reason neither can alien, without the consent of the other, any portion or interest therein; and hence the legal necessity results, that the survivor must take the whole, for the estate being incapable of partition during the life of either, nothing could descend by the death of either. This consequence necessarily results from the nature of the estate, and the legal relation of the parties.” Smith, J., in Ketchum v. Walsworth, 5 Wis., p. 102.
Some of the properties and incidents of estates by the entirety may be summarized as follows:
1. In the eyes of the law an estate by the entirety is vested in one person — the husband and wife. These two individuals who constitute the one marital relation, are deemed to be seized of the entirety,
per tout et non pier my. Bruce v. Nicholson,
2. Upon the death of one, either the husband or the wife, the whole estate belongs to the other by right- of purchase under the original grant
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or devise and by virtue of survivorship — and not otherwise — because he or she was seized of the whole from the beginning, and the one who died had no estate which was descendible or devisable.
Todd v. Zachary,
3. Neither tenant can sever the union of interest so as to affect the right of survivorship without the consent of the other. Bank v. McEwen, 160 N. C., p. 419; Washburn v. Burns, 34 N. J. L., 18.
4. Lands held by husband and wife as tenants by the entirety are not subject to levy under execution on a judgment rendered against either the husband or the wife alone, nor can the interest of either be thus sold, because the right of survivorship is merely an incident of the estate, and does not constitute a remainder, either vested or contingent; but a judgment rendered against the husband and wife jointly, upon a joint obligation, may be satisfied out of an estate in lands held by them as tenants by the entirety.
Martin v. Lewis,
5. Another peculiar incident of an estate by the entirety is, that if an estate be given to A., B. and C., and A. and B. are husband and wife,, nothing else appearing, they will take a half interest in the property and C. will take the other half.
Hampton v. Wheeler,
6. Neither the husband nor the wife can convey the estate without the assent of the other, nor is it subject to the lien of a docketed judgment or to be taken for the debt of either party without the assent of the other.
Gray v. Bailey,
The following is taken from the opinion of the Court in
West v. R. R.,
In
Greenville v. Gornto,
And again in Dorsey v. Kirkland, 177 N. C., p. 523, it is said: “If, as appears from these authorities, the husband has the control and use of the property during the life of his wife, and may deal with it as his own, and if he may execute a valid mortgage or a lease for ten years, we see no reason for refusing to uphold his deed, subject to the limitation that all rights thereunder will cease upon his dying before his wife.”
On the other hand, in
Gray v. Bailey,
But in
Hood v. Mercer,
Speaking to this question in Washburn v. Burns, 34 N. J. L., 18, the New Jersey Court said: “It is true that the husband cannot alien any part of the estate which he holds in the same right with his wife. To do that would be to sever its unity, and thus destroy its peculiar characteristics. The reason he cannot do this is because it would convert the estate into a tenancy in common, and defeat the right of survivorship. But the husband has an interest which does not flow from the unity of the estate, and in which the wife has no concern. He is entitled to the use and possession of the property during the joint lives of himself and wife. During this period the wife has no interest in or control over the property. It is no invasion of her rights, therefore, for him to dispose of it at his pleasure. The limit of this right of the husband is that he’ cannot do any act to the prejudice of the ulterior rights of the wife.”
7. A lease by the husband alone, without the wife’s joinder, is valid during coverture, because he is entitled to the possession, income, increase or usufruct of the property during their joint lives.
Greenville v. Gornto,
The source of this right is stated in 30 C. J., 567, as follows: “The right of the husband at common law to the rents and profits of land held by him and his wife as tenants by the entirety does not spring from the peculiar nature of the estate, and is not an incident thereto, but it is a right which inures to the husband from the general principle of the common law which vests in the husband, jure uxoris, the rents and profits of his wife’s lands during coverture. In other words the common-law rule that the husband is entitled to rents and profits of his wife’s lands is as applicable where she holds a joint title as where she holds sole title.”
8. Where an estate is conveyed to a man and woman who are not husband and wife, but who afterwards intermarry, as they took originally by moieties, they will continue to hold said estate by moieties after the marriage. Hence, there is nothing in the relation of husband and wife which prevents them from taking originally and thereafter holding their interests as tenants in common, if they so desire.
Highsmith v. Page,
Whether husband and wife take as tenants in common or as tenants by the entirety is to be gathered from the instrument which passes the estate to them, and when the intention appears therefrom that they should take an estate as tenants in common, it must prevail, and “such has been the rule from an early period in the history of the English law.”
Isley v. Sellers,
9. An absolute divorce destroys the unity of husband and wife, and therefore converts an estate by the entirety into a tenancy in common.
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McKinnon v. Caulk,
10. It follows necessarily from what is said above that an estate by the entirety is not, and cannot be, subject to dower or curtesy.
Agar v. Streeter,
11.
While the husband is entitled to the possession of an estate held by the entirety and to take'the rents and profits arising therefrom during, coverture, with immunity of said estate from attachment or sale under-execution, yet in a proceeding for alimony without divorce under C. S., 1667, the usufruct of the property may be subjected to the payment of an award for the wife’s reasonable subsistence and that of the children of the marriage, together with counsel fees as allowed by ch. 123,. Public Laws, 1921.
Holton v. Holton,
12. Neither party is entitled to partition.
Jones v. Smith,
In 1 Washburn on Real Property (5 ed.), p. 706, it is said: “A still more peculiar joint estate is that which belongs to a husband and wife,, where the same is conveyed to them as such. If a man and woman,, tenants in common, marry, they will continue to hold in common. But if the estate is conveyed to them originally as husband and wife, they are neither tenants in common nor properly joint tenants, though having the right of survivorship, but are what are called tenants by entirety. While such estates have, like a joint tenancy, the quality of survivorship,, they differ from that in this essential respect,-that neither can convey his. or her interest so as to affect the right of survivorship in the other. They are not seized, in the eye of the law, of moieties,(but of entireties. In such cases, the survivor does not take as a new acquisition, but under the original limitation, his estate being simply freed from participation by the other; so that if, for instance, the wife survives and then dies,, her heirs would take to the exclusion of the heirs of the husband. Nor can partition be made of the estate.”
13. It has been held that an action by husband and wife, involving title or possession to lands held by the entirety, will not be barred by the statute of limitations as to one unless it bars both.
Johnson v. Edwards,
14. A sale by husband and wife and a division of the proceeds ends an estate by the entirety.
Moore v. Trust Co.,
15. A tenancy by the entirety may exist in lands whether the estate be in fee, for life, or for years, and whether the same be in possession, reversion, or remainder (30 C. J., 566); but in this jurisdiction it is held that there can be no estate by the entirety in personal property.
Turlington v. Lucas,
16. Where land is conveyed or devised to a husband and wife for and during the term of their natural lives, or during the life of the survivor, with remainder to their heirs in fee, said husband and wife, under the rule in
Shelley’s case,
take a fee-simple estate as tenants by the entirety in the property so conveyed or devised.
Roberson v. Griffin,
17. The above rules apply to devises to husband and wife, and also to contracts to convey land to husband and wife.
Stamper v. Stamper,
Bearing in mind the above characteristics and incidents of an estate held by husband and wife as tenants by the entirety, we think it is clear that the trust deed made by plaintiff and her husband to W. T. Bass, trustee, for the use and benefit of plaintiff’s husband, is such a contract between a husband and wife, affecting the real estate of the wife, as comes within the provisions of C. S., 2515, requiring the probate officer, as a condition precedent to the validity of the conveyance, to certify in his certificate of probate that, at the time of its execution and the wife’s privy examination, such contract was “not unreasonable or injurious to her.” This having been omitted, in the instant case, the deed in question is void as to the plaintiff.
Singleton v. Cherry,
In
Needham v. Branson,
In
Cornith v. Emery,
A tenant by the entirety has been held to be a freeholder within the meaning of that term in a statute relating to public improvements on the petition of a certain number of freeholders.
Maitlen v. Barley,
The judgment in favor of plaintiff must be upheld.
Affirmed.