McDermott v. FrenchMcDermott v. French
A demurrer is filed to a bill for partition, brought by a grantee оf the husband against the wife.
The first ground of demurrer is fatal. The husband is a necessary party. The wife cannot bo sued alone. She can defend the suit, except under special circumstances, only jointly with her husbаnd. Mitford’s Eq. Pl. 105; Story’s Eq. Pl., § 71.
The rule observed in recent cases is, that a wife though living separate, even though she has been separated by deed, cannot be sued alonе; her husband must be joined, if only for conformity. Calvert on Parties 269.
The second ground of demurrer is, that the estate in
If an estate in fee be given to a man and his wife, or a joint purchase be made by them during coverture, thеy are neither properly joint tenants nor tenаnts 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. Co. Litt. 187, a, b; 2 Cruise’s Dig., tit. 18, ch. 1, § 46; 5 Cruise, tit. 36, ch. 7, § 27; 2 Bla. Com. 182; 2 Kent’s Com. 132; Green ex dem. Crew v. King, 2 Black. R. 1211; Den v. Hardenbergh, 5 Halst. 42.
Where a husband and wife are thus seized of the entirety, a conveyance by either is inoperative. Back v. Andre, 2 Vern. 120; Doe v. Panatt, 5 Term Rep. 654; Jackson v. Stevens, 16 Johns. R. 115; Rogers v. Benson, 5 Johns. C. R. 437; Dias v. Glover, 1 Hoffman’s Ch. R. 76.
And thе estate thus vested in the husband and wife, by a conveyance to them during coverture, is not affected by thе act of 1812 respecting joint tenants and tenants in common. Nix. Dig. 136, § 34. That act extends to joint tenancies only, and not to tenancies by entireties. Den v. Hardenbergh, 5 Halst. 47; Shaw v. Hersey, 5 Mass. 521; Jackson v. Stevens, 16 Johns. R. 110.
But where an еstate is conveyed to a man and woman before marriage, who afterwards intermarry, as they took by moieties, they will continue to hold by moieties after marriage. 1 Inst. 187, c; Moody v. Moody, Ambler 649.
So it seems that a husband and wife may, by express
The bill alleges that the husband and wife were seized as tenants in common by virtue of a cоnveyance made to them. Even, therefore, if it аppears by the bill that the conveyance wаs made during coverture, that fact is not absolutely inconsistent with the creation of a tenancy in common. As there is a direct averment that the conveyance created a tenancy in common, it must be assumed that apt words were used in the deed for that purpose. This objection cannot prevail upon demurrer. If in truth the conveyance was mаde to the husband and wife during coverture, and apt words for the creation of a tenancy in common were not used, the fact should be shown by way of plea.
Upon the first ground, the demurrer is allowed.