10 N.J.L. 42 | N.J. | 1828
By deed of bargain and sale, bearing date on the fUst day of August 1822, and made “ between William MfKriigbt and Naney his wife, of the county of Burlington, and state of New-Jersey, of the first part, and James Hardenbergh and Elizabeth bis wife, of the township of South Amboy, county of Middlesex and state of New-Jersey, of the second part,” the words, and Elizabeth his wife, having been interlined after the deed was drawn and before it was executed, “ the party of the first part,” granted, bargained and sold “ unto the said party of the second part, his heirs and assigns, forever,” a lot of land in the township of South-Amboy, being the premises in question, to have and to hold, “ unto him the said party of the^second part, his heirs and assigns, to the only proper use, benefit and behoof of him the said party of the second part, his heirs and assigns forever.” Under this conveyance, James Hardenbergh, went into possession of the premises, built an house and made other improvements, and continued in possession until his decease. He died without issue. His wife, the lessor of the plaintiff, and one of the grantees in the deed survived him, and continued in possession of the premises for six months after his decease, at which time the defendant who is the father of James Hardenbergh entered, and continued, by his tenant in possession, at the commencement of this action.
The lessor of the plaintiftj claims the whole premises under
^le counsel °f the defendant, in the brief submittedio us, insists that the wife by force of the deed, “ takes a joint estate with her husband for life, and then it goes over to his heirs in fee simple ; a joint estate for life with remainder in fee to the husband” “ a well known estate in the law;” and for example he refers to the 285th, 2Littleton, which is in these words. “ If lands be given to two and to the heirs of one of them, this is a good jointure and the one hath a freehold and the other a fee simple.” To which Littleton adds, “ if he which hath the fee dieth, he which hath the freehold shall have the entirety by survivor for term of his life.” And Colbe, in his comment says, “ they are joint tenants for Ufe and the fee simple is one of them.”
The counsel of the defendant farther insists, that “ if the deed should be construed according to the claims of the plaintiff, still hy force of our statute, Rev. Laws 556, the lessor of the plaintiff and her husband, were tenants in common.”
It is manifestly,unnecessary for us in order to decide this cause, ato enquire or determine whether the lessor of the plaintiff takes under the deed an estate for life, or an estate in fee simple, because if as the defendant insists, she took only an estate for life, and by virtue of our statute, as a tenant in common, the plaintiff, her life estate of one moiety subsisting, must be entitled in this action to judgment, to recover one moiety of the premises.
In as much, however, as the plaintiff demands the whole premises, although to ascertain the duration of the estate of the lessor is not essentia], yet the operation and extent of the statute respecting joint tenants and tenants in common, must be examined, because thereon depends the question whether the plaintiff' is to recover the entirety or only a moiety.
Properly to understand the statute and 'safely and truly to construe it, we must first distinctly comprehend the nature of the estate which passes to husband and wife by a grant made to them during coverture.
A conveyance of lands to a man and his wife, made after their intermarriage, creates and vests in them an estate of a very peculiar nature, resulting from that intimate union, by which as Blaclcs/one says, <fthe very being or legal existence of the woman is suspended during the marriage, or at least is incoj
Having brought to our view, the nature of the estate of husband and wife, we may proceed to ascertain the applicability of •he statute, respecting joint tenants and tenants in common to the case before us.
It is enacted “ that no estala shall be considered and adjudged io be an estate in joint tenancy, except it be expressly set for'h in the grant or devise creating such estate, that it is the intention of the parties to create an estate in joint tenancy and not an estate of tenancy in common.” But we have seen that the deed of James Hardenbergb and wife, would not anterior to that statute, have created an estate in joint tenancy, that the estate created, uhereby would not have been considered or adjudged to be of that class, it follows then, that it is not of that nature on which the statute was designed to operate. But the counsel of the defendant, appeals very properly to the preamble and to the light which may be thence shed on the intention of the legislature. It is in these words : “Whereas, estates granted or devised to a plurality of persons without any restrictive, exclusive, or explanatory words, have iseretofore been held in this state, lobe estates in joint tenancy, therefore be it enacted.” The very pause class of cases here, as in the enacting clause, is plainly designated. Such as had been held to be estates in joint tenancy. Moreover, the preamble mentions estates granted to a plurality of persons. But husband and wife, in contemplation of law are one person, not a plurality. We shall be the more satisSed with ibis construction, if we recur to the causes which induced the legislature to enact this law. The hardship, surprise and unanticipated consequences of the doctrine of survivorship, can rarely if, indeed, ever be felt in the caso of husband and wife.
This statute then, does not operate on the deed before uS. If, is subject to the principles of the common law ; and by them, the wife is entitled, the husband being dead, to the possession of the whole premises.
In the case of Shaw v. Hearsey, 5 Mass. 521, the Supreme f'ev.'it of Massachusetts, held ?b;'t the M-.tnto of that «3*e. did no*
Upon the whole, I am of opinion the plaintiff is entitled to recover the whole premises in controversy.
This case turns upon the construction of th© deed, conveying the premises in question. It is made “ betweeEi William M'Knight and Nancy his wife, of the first part; and James Hardenbergh and Eliza his wife, of the second part j”- and grants, bargains, and sells “ to the said party of the second part, his heirs and assigns,” the lands and tenements in controversy.
. The said.James Hardenbergh, took possession of the premises, made expensive improvements, and died there without issue, leaving the said Eliza bis wife, the lessor of the plaintiff, in possession, which she held about six months, when the defendant, Jacob R. Hardenbergh, took possession, and still holds the same by his tenant, John Appleby.
The grantees are “ the party of the second part,” (that is, James Hardenbergh and Eliza his wife,) “ his heirs and assigns.” The term party, embraces both grantees, and is used for thai purpose with strict grammatical accuracy ; and the word his, is as definite in its reference to only one of them. More formally
The only remaining question is, how-far the common law, as appiicable to this case, is varied by the statute. Revised Laws, p. 556. Under the operation of which, the plaintiff’s right of recovery, would be reduced to one half the premises. My doubts on this point have been removed, by the view of it taken, ill the opinion of the Chief Justice, and I concur with him that ;lte plaintiff is entitled to recover the whole premises.