145 N.Y.S. 497 | N.Y. App. Div. | 1914
The important question involved upon this appeal is whether one of the owners of an estate in entirety can institute and maintain a proceeding for an assessment of damages to property so owned, without the cotenant being a party to the proceeding.
Since 1904 the respondent and his wife, Flora 0. Goodrich, have been the owners and in possession as tenants by the entirety of real estate situated upon the easterly side of River street in the village of Otego, N. Y. In 1911 the village, which had exclusive control and jurisdiction of the streets therein, macadamized River street, making a radical change in the grade thereof opposite the premises so owned and occupied by the respondent and his wife. Thereupon the respondent, pursuant to the provisions of section 159 of the Village Law (Consol. Laws, chap. 64; Laws of 1909, chap. 64), presented to the trustees of said village a claim for damages “sustained by claimant to his real property situate on the east side of River street in said village, in the sum of $500, which damages were occasioned by the change of the grade of said street in front of said premises, thereby injuriously affecting the value of the same.”
Section 159 of the Village Law, so far as is material to be noticed here, provided: “ If such change of grade shall injuriously affect any building or land adjacent thereto, or the use
Respondent’s wife did not join in the claim of respondent nor present any claim whatever, and probably her right to do so is now barred by the statute. The respondent and the village trustees having been unable to arrive at an agreement as to the amount of such damages, the respondent, by petition, asked the appointment of three commissioners to determine the compensation to which the petitioner was entitled by reason of such change of grade. The appellant thereupon interposed an answer putting in issue the allegations of ownership of said premises by respondent and alleging that the improvements to said street amounted to a change of grade, and that the alleged change of grade had injuriously affected said premises. Thereupon trial of the issues was had, the court finding that said premises were owned by the respondent and his wife as tenants by the entirety; and that the village had made a change in the grade of the street, which had injuriously affected said premises. The court held that the respondent was entitled to the appointment of commissioners to determine the amount of the damages sustained by him by reason of such change of grade.
Under the common law, “ if an estate in fee be given to a man and his wife, they are neither properly joint tenants, nor tenants in common; for husband and wife being considered as one person in law, cannot take the estate by moieties, but both are seized of the entirety, per tout et non per my: the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.” (2 Black Com. 182; Torrey v. Torrey, 14 N. Y. 430.)
Where land is conveyed to a husband and wife without any express restriction as to the character of their holdings, they take as tenants of the entirety. Seizin by the entirety does not create a joint tenancy either in substance or form. (Jackson v. McConnell, 19 Wend. 175.)
This common-law doctrine that under a conveyance to a husband and wife jointly they take as tenants by the entirety has not been abrogated by the statute providing that every estate granted or devised to two or more persons in their own right shall be a tenancy in common unless expressly declared to be a joint tenancy, nor by the legislation in reference to the
“At common law husband and wife were regarded as one person, and a conveyance to them by name was a conveyance in law to but one person. These two real individuals, by reason of this relationship, took the whole of the estate between them, and each was seized of the whole and not of any undivided portion. They were thus seized of the whole because they were legally but one person. Death separated them, and the survivor still held the whole because he or she had always been seized of the whole, and the person who died had no estate which was descendible or devisable.” (Stelz v. Shreck, 128 N. Y. 263.)
While, therefore, the acts relating to the rights of married women have not abrogated the common-law doctrine of tenancy by the entirety, and under a conveyance to a husband and wife they take not as tenants in common or joint tenants, but by the entirety, and upon the death of either the survivor takes the whole estate, as the right of the husband to the rents and profits of the wife’s lands during their joint lives has been completely swept away by said statutes, he is not exclusively entitled to the usufruct of the lands so held by them in entirety but they are tenants in common or joint tenants of the use, each being entitled to one-half of the rents and profits, so long as the question of survivorship is in abeyance. The usufruct was not incident to the vesting of title, but of the marital right, and hence is not attached and does not follow the fee damage. (Hiles v. Fisher, 144 N. Y. 306; Buttlar v. Rosenblath, 42 N. J. Eq. 651.)
When a husband and wife are seized of an estate as tenants by the entirety, a proceeding by a municipality to condemn a right of way for a sewer across the premises, in which notice is served upon the husband alone and he only appears, and which results in an award to him, does not bind the wife’s interest or confer any right in the land as to her, and she can maintain an action, during the life of her husband, to restrain the construction of the sewer, as a threatened permanent injury to the freehold which will interfere with her possession. (Grosser v. City of Rochester, 148 N. Y. 235.)
It is evident from the foregoing authorities that as to the right of possession and use of the premises the respondent and his wife are tenants in common; that the wife having failed to present a claim for damages as provided by section 159 of the Village Law is without remedy; that the respondent having duly presented his claim is entitled to be awarded the damages,' if any, to the value of the use and occupation of the premises sustained by him as a-tenant in common thereof, subject to an allowance for any benefits derived by bim from such improvement. Therefore, the order appealed from appointing commissioners to appraise the damages sustained by the respondent was, at least as to his right of use of the premises, properly granted, and hence should be affirmed.
As to the damages to the fee, tenancy by the entirety is founded upon the oneness of husband and wife. Neither alone is possessed of the fee but together they constitute one person, and as such hold by the entirety. Each is a tenant in common of the use during the period of their joint lives, with a contingent remainder in fee dependent upon survivorship. Acting in conjunction they may convey a fee title in possession. Neither can deal with the entirety estate in derogation of the other’s right of survivorship. The transfer of the tenant’s ihterest will not sever the tenancy nor affect the other tenant’s right in the freehold; and in case of the prior death of the cotenant whose right and interest were transferred, all title and interest of the transferees are immediately divested, and the surviving tenant becomes the sole owner in fee of the premises owned by both as tenants by the entirety. (Hiles v. Fisher, supra; Zorntlein v. Bram, 100 N. Y. 12; Beach v. Hollister, 3 Hun, 519; Den ex dem. Wyckoff v. Gardner, 20 N. J. Law, 556; Atkison v. Henry, 80 Mo. 151.)
Although no claim of damage to the use and occupation, or
The order appealed from must be affirmed.
All concurred.
Order affirmed, with ten dollars costs and disbursements.