65 A.2d 399 | Pa. | 1949
The question is whether a voluntary partition of real estate, held by the entireties, resulted from the conveyance by one spouse to the other who accepted it, paid the consideration and recorded the deed.
John Gapinski and his wife took title to the land in 1904. The husband, without joining his wife as a grantor, conveyed to her his interest in the property by deed dated July 30, 1910, reciting the payment and receipt of $3,000. She accepted the conveyance and recorded the deed: McDowell v. Cooper, 14 S.
R. 296 (1826); Blaisdell Filtration Co. v. Bayard Co., Inc.,
The wife died, intestate, December, 1918, leaving her husband, and two children surviving; they took her estate under the intestate law, each taking one-third.
In an execution on a judgment against John Gapinski at August term 1930 the sheriff sold to John Snyder, all the right, title, interest and claim of John Gapinski of, in and to the property. Snyder, the sheriff's vendee, conveyed to the plaintiffs, husband and wife, who have been in possession since 1931 and who brought this proceeding to quiet title: Pa. R. C. P. 1061-1066. *595
In disposing of plaintiffs' motion for judgment on the pleadings, the learned court below sustained the complaint and entered judgment for the plaintiffs, holding that the husband's deed to his wife in 1910 and her acceptance of the conveyance, were ineffective to terminate the estate by entireties, and that on his wife's death in 1918, he succeeded by survivorship to the whole estate; that it was the whole estate that was sold by the sheriff, bought by Snyder and conveyed to plaintiffs and not a part received from his wife under the intestate law. We cannot sustain the judgment.
Our cases show that the rigidity of the common law concept of tenancy by the entireties has yielded to the demands of modern life.1 In Michalski et al. v. Kruszewski et al.,
"Nor can there be any valid objection to the means employed to effect the amicable partition in the present case. The ordinary method of effecting a voluntary partition *596
is by the mutual exchange of individual deeds: See 1 Tiffany, Real Property (2d ed.), section 203. Such was the means adopted here. As a matter of fact, a parol partition would have been valid, the Statute of Frauds being inapplicable: Merritt v. Whitlock, supra. It follows that the clear intention of the parties was duly effected; conveyance to a third party and reconveyance by him was unnecessary. Nor was it required that both husband and wife join as grantors in the deeds that were exchanged." In Merritt v. Whitlock,
We agree with the authorities relied on by appellees applying the principle that one spouse cannot destroy the incidents of the tenancy without the assent of the other. But the facts of this case show clearly that by her acts the wife consented to the termination of the entirety. There is no presumption flowing from the marital relationship that in conveying the estate one spouse acted as agent for the other: Schweitzer v.Evans,
Judgment should have been entered for defendants. The same conclusion seems to have been reached in other jurisdictions.2
Judgment reversed and record remitted for action consistent with this opinion, costs to be paid by plaintiffs.
See also an act approved May 10, 1927, P. L. 884, entitled, "An Act Modifying the common-law rule relating to property hereafter acquired by husband and wife as tenants by entireties, where such husband and wife as [are?] subsequently divorced; providing for the sale of property held by husband and wife as tenants by entireties where they have been divorced; and directing the distribution of the proceeds of such sale."
"Direct conveyances by a husband to his wife, of his interest in an estate by the entireties has received the approval of the courts in several other jurisdictions; Moore v. Moore,