20 N.J.L. 556 | N.J. | 1846
I do not preeeive any great doubt or difficulty in this case. There is but one question in the cause. It is whether Charles Gardner, the defendant, to whom jointly with his wife during coverture a conveyance had been made of the premises in controversy, his wife still living had such an interest in these premises, as that heeould not alien or mortgage without her concurrence. The husband and wife, it is true, have -what is called a peculiar estate; peculiar, — for although conveyed to them jointly, they are not properly joiut tenants, neither are they tenants in common; it is a species of tenancy which arises from the legal notion of the unity of their persons. The husband and wife, being considered one person in law, cannot take the estate by moieties, but both are seized of the entirety, to use the technical expression, per tout, et non per my. The same words of conveyance which make two other persons joint-tenants, will make husband and wife tenants of the entirety. The consequence of this peculiar estate is, that neither the husband nor wife can dispose of any part without the assent of the other, but the whole must remain to the survivor. There must be a survivor-ship, because the interest cannot be severed. It is an estate which still may exist, and be created in this state, notwithstanding the “act respecting joint-tenants and tenants in common.” Rev. L. 550. Elm. Dig. 86. Den v. Hardenburgh, 5 Halst. 42.
It is said, in the cases cited, and in the usual authorities which treat of this peculiar estate, that neither husband nor wife, separately and without the assent of the other, can dispose of or convey away any part. That the husband cannot alien, and much less devise that estate, the whole of which belongs to his wife
But does it lie in the mouth of the defendant in possession of the premises, in an action of ejectment brought against him upon his own mortgage deed, to deny his right to mortgage ? Whatever may be the effect of ordinary deeds of conveyance without warranty in concluding a grantor, who has released or conveyed without interest, yet in relation to mortgages the question is well settled. By an equitable estoppel, based upon the legal frau,d which wouid be- otherwise permitted, one who mortgages land
As to the offer made in relation to the payment of the consideration money, how and by whom paid, it was properly overruled by the Judge, as immaterial. Whatever equity might arise to the wife out of the fact that the premises had been purchased with her money, it could not affect the legal title and could have no influence on this cause. I am of opinion that the plaintiff is entitled to recover, and that the Circuit Court of the county of Hudson be so advised.
This was an ejectment, brought in the Hudson Circuit, and tried in June 1843. Upon the trial, the lessors of the plaintiff claimed title to the premises by virtue of a bond and mortgage, executed by the defendant to them for $800, dated the 10th day of March, 1840, and payable at a day then past. The indenture of mortgage, duly acknowledged and registered, was offered in evidence and read, whereupon the plaintiff rested his cause.
The defendant then gave in evidence a deed of conveyance, for the same premises, from the executors of Charles Chebsey, deceased, to himself and wife, their heirs and assigns, dated the 4th day of April, 1835. It was admitted that the wife of the defendant was living, and that he had no other title to the premises than the last mentioned deed, at the time the said mortgage was executed, nor had he acquired any other title since. The jury
The defendant has seen proper to adopt the latter course, and has presented and argued the ease before us. The position assumed by the defendant’s counsel is, that the defendant had no such estate in the premises, as he could convey by separate deed or mortgage. Since the decision of this court in Den v. Hardenbergh, 5 Halst. 42, I apprehend no doubt can exist, as to the true character of an estate conveyed to husband and wife, during coverture. They take neither as joint tenants nor tenants in common, but become seized of a “ peculiar estate, resulting from that intimate union, whereby the legal existence of the wife is suspended during the marriage, or at least incorporated with that of the husband.” Each becomes seized of an entirety in the lands so conveyed, and neither can convey or dispose of the same without the assent of the other. It is an estate of which partition cannot be made, and which cannot be severed; and upen the death of either, the survivor will become seized of the whole. But it will not follow from any of these principles, that the husband cannot charge or encumber such an estate by mortgage during the coverture. In virtue of the marriage, he becomes entitled to the possession. The possession is in him solely, and he takes the rents and profits, and may lease the same, in like manner as if the lands were an inheritance in the wife before marriage. In Barber v. Harris, 15 Wend. 615, the court say, that “ during the life of the husband, he undoubtedly has the absolute control of the estate of the wife, and may convey or mortgage it for that period. By the marriage he acquires, during coverture, the usufruct of all her real estate, which she has in fee simple, fee tail or for life. If the wife survive, she may then raise the question as to the nature and extent of her interest in the land, if she is not precluded by her own act or deed.” In this case the deed had been made to husband and wife and their six children, to have and to hold to each of them during the natural lives of husband and wife and the survivor of them. The husband having executed a mortgage on the lands
But I apprehend there is another reason why the plaintiff is entitled to judgment. The defendant, having executed and delivered the mortgage, is estopped by his own deed from denying his title to the premises, or from setting up a title in another. 15 Wend. 617.
Judgment for the plaintiff.
Hornb lower C. J. concurred.
Cited in Demarest v. Hopper, 2 Zab. 621, Washburn & Campbell v. Burns & McCabe, 5 Vr. 20.