7 N.Y.S. 225 | N.Y. Sup. Ct. | 1889
Certain real estate, known as “Lot 1, in block 100, in the village of Corning,” was conveyed to the plaintiff and her husband, Dennis O’Connor, on the 13th day of September, 1873. In a year or two thereafter Dennis O’Connor and the plaintiff separated, he voluntarily leaving her in the possession and control of the premises, and they have continued to live separate and apart since that time. On the 31st day of October, 1876, Dennis O’Connor executed a deed of an undivided half of said premises to the defendant, Dennis McMahon. The plaintiff, however, did not join in this conveyance, nor has she done any act to confirm the same in any respect. On the 11th of November, 1876, one Catharine M. Hogan recovered a judgment against the same Dennis O’Connor. Subsequently the interest of said Dennis in such lands was sold by the sheriff of the county of Steuben to CatharineM. Hogan, who thereupon took possession of the west half of the said lot, and erected a house thereon, assuming that she was a tenant in common with this plaintiff. Afterwards, Catharine M. Hogan brought an action in the county court of Steuben against the said Dennis McMahon and his wife for a partition of the premises in question, upon the ground that McMahon and his wife were tenants in common with her of said premises. The plaintiff in this action was not made a party to that action, but on the 5th day of October, 1885, after a judgment had been entered therein, a motion was made in the Steuben county court by Dennis McMahon for an order putting him into possession of the east half of said lot, that being the portion of the land awarded to him in and by the judgment given in the partition suit. Such motion papers were served upon this plaintiff. She appeared in pursuance of the notice, and objected to the jurisdiction and power of the court thus summarily to adjudge upon her rights, which objection was overruled, and the court proceeded to carry into effect the judgment already pronounced. During all of this time the plaintiff was in possession of all of the lands, and had growing upon the part in dis
The proceeding in the county court of Steuben county, whereby, upon a mere motion to put McMahon in possession of a portion of the premises, the rights of this plaintiff were attempted to be adjudicated, was a mere nullity. Not being a party to the action, she could not be removed from the land, or any portion of it, in this summary manner. Nor was it necessary for her to appeal from that determination of the county court in this respect, for on the face of the proceedings the county court acqui red no jurisdiction. She objected timely to the proposed action in carrying into effect the judgment in partition, and she cannot be prejudiced by the fact that, after having her objection overruled, she, by the aid of counsel, did what she could to resist the unlawful proceedings against her rights. The question, therefore, in this case must be determined by the rule governing estates in entirety, where conveyances are made to husband and wife. Notwithstanding the doubts previously expressed in Meeker v. Wright, 76 N. Y. 262, and Schultz v. Schultz, 89 N. Y. 644, the case of Bertles v. Nunan, 92 N. Y. 152, has settled the law in this state to the effect that under a conveyance to a husband and wife jointly they take, not as tenants in common nor as joint tenants, but as tenants by the entirety, and, upon the death of either, the survivor takes the whole estate. The opinion in that case, which contains almost a complete enumeration of the cases theretofore arising in this state upon the question involved, declares that this estate by the entirety still exists, notwithstanding the laws of 1848,1849, 1860, and 1862. This decision was reaffirmed in the case of Zorntlein v. Bram, 100 N. Y. 12, 2 N. E.Rep.388, which also decided that this common-law rule was not done away with by the act of 1880, (chapter 472, Laws 1880,) allowing the husband and wife to make a division between themselves of land* so held by them. This case further holds that neither husbandnor wife can separately convey to a third person by deed any portion of such land so held by them. This decision would seem to be decisive of the case before us.
But the counsel for the defendant has made an argument to the effect that inasmuch as under the common-law rule the husband as such was entitled to receive the proceeds and avails of the land during the joint lives of the owners, he could, as he has attempted to do in this instance, transfer such right to a third person. A sufficient answer to this proposition is that in the answer to the complaint the defendant has put his right wholly upon the claim of title to the land by virtue.of such conveyance by the husband, and in the proceedings for the partition of such lands above mentioned. Furthermore, for the purposes of this hearing, it is not necessary to decide whether in any case the husband may, by the hand of another, by virtue of his common-law marital rights, incident to holding the estate in entirety with his wife, receive and dispose of the issues and profits of the real estate, regardless of the rights of his wife. The contention for such proposition would be vulnerable in one respect, namely, that under the common-law rule, while he receives with one hand the rents and profits of the real estate so held, he is, by the same common-law rule, required with the other to dispense the same, or so much as is necessary therefor, to the support and maintenance of his wife and family, which was not done in this instance.
The act of 1860 (chapter 90, § 1) has an important bearing upon the questions here presented. That section is as follows: “The property, both real and personal, which any married woman now owns, as her sole and separate property; that which comes to her by descent, devise, bequ'est, gift, or grant; * * * and the rents, issues, and proceeds of all such property,—shall, not
