The plaintiffs as husband and wife are tenants by the entirety of a tract of land in Springfield. A creditor of the wife attached her interest in that land on a writ sued out in an action at law against her, recovered judgment, took out execution, and placed it in the hands of a deputy sheriff for service, who levied upon the interest of the wife in the land and was proceeding toward the sale of the same on the execution when this suit was brought. The question presented is whether the interest of a wife in real estate held by her husband and herself as tenants by the entirety can during their joint lives be attached and sold by a creditor of the wife. This precise question has never been presented for decision in this Commonwealth, so far as we are aware.
“The nature of a tenancy by the entirety is thoroughly established by our decisions. It is founded on the common law doctrine of the unity of husband and wife as constituting in law but one person. A conveyance to a husband and wife as tenants by the entirety creates one indivisible estate in them both and in the survivor, which neither can destroy by any separate act. Both husband and wife are seised of such an estate per tout et non per my as one person, and not as joint tenants or tenants in common. Alienation by either the husband or the wife will not defeat the right of the survivor to the entire estate on the death of the other. There can be no severance of such estate by the act of either alone without the assent of the other, and no partition during their joint lives, and the survivor becomes seised as sole owner of the whole estate regardless of anything the other may have done. The tenancy by the entirety is essentially a joint tenancy modified by the common law theory of the unity of husband and wife. They do not take by moieties but by entireties. The characteristics of a tenancy by the entirety at common law continue unaffected by the modern statutes designed to ameliorate the rights of married women at common law and
The theory of grants or transfers of interests in property at common law gives an appearance of plausibility to the suggestion that the wife may transfer her interest in a tenancy by the entirety, subject to its main feature as to the rights of the husband if he survives. That theory rests upon the principle of the ancient law, surviving in full force in modern times, to the effect that, although a bare possibility, hope, or expectation as to title to real estate cannot be granted, a possibility coupled with a present interest may be the subject of a grant. This principle is so well settled as to real estate that commonly it is stated baldly without discussion, the difficulty lying, not in its recognition, but in its application. Winslow v. Goodwin,
It has been held after great deliberation that the “statutes enabling a married woman to receive, hold, manage, and dispose of real and personal property in the same manner as if she were sole, cannot ... be construed to apply to the estate by entireties of husband and wife . . . And after an analysis of the statutes it further was said: “We think it appears that the Legislature intended that this peculiar tenancy should be preserved as it existed at common law.” Pray v. Stebbins,
It is a necessary corollary of the decision quoted above from Pray v. Stebbins that the nature of the interests of the wife in a' tenancy by the entirety must be measured by the standard of the common law. It would be anomalous to set up a different standard to measure her interests from that used with respect to the husband.
The position of the wife at common law as to her real estate is settled. During coverture she could make no valid conveyance of any interest therein without the assent in writing of the husband. Her sole deed was void. Lowell v. Daniels,
These indubitable common law rules require the conclusion that a creditor cannot do with the right of a tenant by the entirety that which the tenant cannot do. The statute as to attachment of land of a debtor, G. L. c. 236, § 1, affords no relief because from its nature the interest of the wife as tenant by the entirety is not during coverture subject to attachment, levy and sale. Since the wife cannot sell it herself, her creditor cannot sell it by resort to attachment and levy on an execution in an action at law.
Decisions in other jurisdictions are not of much assistance in the present discussion because of differences in interpretation of statutes touching the property rights of married women and in conception of the characteristics of a tenancy by the entirety. The result here reached, however, is in
This suit rightly was brought in the Superior Court. It has jurisdiction of the subject matter. McArthur v. Hood Rubber Co.
It follows that the plaintiffs upon the agreed facts are entitled to the relief sought by their prayers numbered 1, 3 and 4; and a decree is to be entered accordingly, with costs. The details are to be settled in the Superior Court.
Decree reversed.
Decree to be entered granting relief to the plaintiffs.