Town of Corinth v. Emery

delivered the opinion of the court.

The plaintiff claims an interest in the demanded premises by virtue of a levy of, and sale upon, an execution in its favor against the defendant. The defendant’s interest in the premises, at the time of the levy and sale, arose under a deed conveying the premises to himself and wife. It is conceded that the estate created by the deed was one by entirety. This estate, created by conveyance to husband and wife, is a peculiar one. The interest of the grantees is not joint, nor in common. The parties do not hold moieties, but take as one person, taking as a corporation would take; they have but one title; each is seized of the whole and each owns the whole. If one dies the estate continues in the survivor, the same as if one of several corporators dies. It does not descend upon the death of either, but the longest liver, being already seized of the entire estate, is the owner of it. One tenant *507by entirety cannot sever the tenancy by deed, as a joint tenant can, for neither can alien so as to bind the other. Our statute of partition, R. L., s. 1275, does not extend to this estate; and a conveyance to husband and wife is expressly excepted from the operation of the statute, R. L., s. 1917, abolishing joint tenancies. If the husband be attainted, his attainder does not effect the right of the wife, if she survive him. Divorce vinculo does not destroy the estate, and the jus accrescendi takes effect, upon the death of the one first dying. As an illustration of the rule that there are no moieties between husband and wife and that they take as one person, it may be stated that when land is conveyed to husband and wife and a third person, the husband and wife take but a moiety, the third person taking a like moiety. The following citations may be referred to for authorities touching the characteristics of this estate: Co. Litt. 187; Bacon’s Abr. Joint Ten. (B); 2 Cruise R. P. s. 35; 2 Bl. Com. 182; 4 Kents Com. 362; Nichols v. Nichols, 2 Plow. 483 ; Skinner 182; Doe ex dem v. Parratt, 5 Term 652; Doe v. Wilson, 4 Barn. and Ald. 303; Dias v. Glover, Hoff, Ch. 71; Rogers v. Benson, 5 Johns. Ch. 431; Den ex dem. v. Hardenbergh, 5 Hals. N. J. (Law) 42, and note in 18 Am. Dec. 369 ; Taul v. Campbell, 7 Yerg. 319; Fairchild v. Chastelleux, 1 Pa. St. 179; Stuckney v. Keefe's Exrs., 26 Pa. St. 397; McCurdy v. Canning, 64 Pa. St. 39; Wright v. Saddler, 20 N. Y. 320; Appeal of Lewis (Mich.) 48 N. W. Rep. 580 ; Chandler v. Cheney, 37 Ind. 391.

The doctrine of survivorship in case of tenancies by entirety has been repudiated in Ohio and Connecticut. Sergeant v. Steinberger, 2 Ham. (Ohio ) 305 ; Phelps v. Jepson, (Conn. 1769) 1 Root 48; Whittlesey v. Fuller, 11 Conn. 337. The Connecticut Court admits that it is the doctrine of the English law, and seems to base its decisions upon local customs and usage. The rule lias been altered, in some respects, by legislation in the States of Iowa and Illinois.

The rule is recognized in Vermont, in Brownson v. Hull, *50816 Vt. 309; is stated by Barrett, L, to be settled law, in Davis v. Davis, 30 Vt. 440; and cited approvingly in Park v. Pratt, 38 Vt. 545., The plaintiff insists that the defendant was entitled to the nse, income and profits of the estate during his life, that he had a life estate in the property, and that it was subject to levy and sale upon an execution against him alone. Such undoubtedly is the common law. The husband, during his life, is entitled to the usufruct of the real estate belonging to his wife, and no doubt by that law, can convey such life estate, or encumber it, and it may be taken upon execution against him alone. This rule was in force in this state in 1844, when Brownson v. Hull, supra, was decided, and Boyce, J., stated that he supposed the estate was liable to attachment and execution at all times during the joint lives of the owners; and by this we understand he meant, that the life estate of the husband could be taken upon his sole debts, but not so as to affect the right of the wife, should she survive him. But the Legislature soon enacted that the rents, issues and profits of the real estate of any married woman, and the interest of her husband in her right in any real estate which belonged to her before marriage, or which she may have acquired by gift, grant, devise, or inheritance' during coverture, shall, during coverture, be exempt from attachment or levy of execution for the sole debts of her husband. Acts 1847, No. 37, s. 1. By a subsequent act, it was provided that the words, issues and profits, shall be construed to include all moneys and obligations arising from the sale of such real estate. Acts 1850, No. 22; and later the products of such real estate are in like manner protected. Acts 1861, No. 25. These provisions are embodied in our present statutes, B. L. ss. 2324-5. The plaintiff’s counsel insist that these sections do not apply to an estate by entirety, but only to such real estate as may be owned by the wife separately. In this we think they are in error. Such an estate is the real estate of a married woman although her husband is joined with her in the title. It is the real estate of each. If the claim of the plaintiff *509is upheld, then the interest of the husband in his wife’s right, in her real estate, is taken upon the sole debt of the husband. This would annul the statute. The estate of the wife and her husband’s interest therein in her right, in the property in question, is protected from the husband’s sole creditors by the sprit and letter of the statute.' This construction has been given a similar statute in Indiana. Davis v. Clark, 26 Ind. 424.

If the conveyance of the premises in question to the defendant and wife, was' a fraud upon the defendant’s creditors, the latter must seek their remedy in some other action, and probably in the same manner they would be obliged to adopt in case the property had been conveyed to the defendant’s wife, instead of the defendant and his wife jointly.

Judgment reversed, and judgment for the defendant.