On appeal from Superior Court, Law Division.
For reversal -- Justices Burling, Jacobs, Francis, Proctor and Schettino. For affirmance -- Chief Justice Weintraub, and Justice Hall. The opinion of the court was delivered by Burling, J. Weintraub, C.J. (dissenting). Hall, J. (dissenting).
[30 NJ Page 397] This is an action seeking possession of lands, damages for mesne profits and a declaration that a mortgage encumbrance held by defendant Margaretta P. W. Harrison is a nullity and directing its discharge of record. The Superior Court, Law Division, hearing the matter on stipulated facts, granted plaintiff's motion for summary judgment. Defendants appealed, and while pending and prior to argument in the Appellate Division, we certified the cause on our motion. After argument in this court, we
directed that the cause be reargued and requested that the New Jersey Title Insurance Association appear as amicus curiae.
The following facts are stipulated: In 1913 plaintiff, Marie King, acquired the title to three lots on Patterson Avenue in the Borough of Shrewsbury, New Jersey. In 1931 her husband, Philip King, brought an action against her in the Court of Chancery which resulted in a decree being entered that plaintiff owed him $1225. It was further ordered that plaintiff execute a conveyance of the three lots to herself and her husband as tenants by the entirety. While the conveyance was never made, the decree was recorded, the self-operative effect of which was to make Marie and Philip King become seized of the premises as tenants by the entirety. R.S. 2:29-61 (now N.J.S. 2 A:16-7).
In 1932 execution was issued to satisfy the 1931 money judgment and a sheriff's deed was made to John V. Crowell of all plaintiff's right, title and interest in the property. In 1933 Philip King conveyed his right, title and interest in the three lots to Martin Van Buren Smock. John V. Crowell and his wife joined in the deed to Smock, conveying their interest acquired by virtue of the sheriff's deed. Philip King died in 1938. In 1946 Smock conveyed his interest to defendants Joseph and Mabel Greene.
In 1957 plaintiff, as surviving spouse of Philip King, instituted the present action for possession, contending that she is the sole owner of the property and that the 1932 sheriff's deed conveyed only one-half the rents, issues and profits of the property during the joint lives of the spouses and did not convey her right of survivorship. She alleges that when her husband died in 1938 the life estate for the joint lives of the spouses terminated and she became entitled to the fee. Defendants' contention is that the sheriff's deed conveyed plaintiff's right of survivorship as well as a life interest.
The trial court concluded that the sheriff's deed did not include the right of survivorship and entered a summary
judgment for plaintiff which declared that she is the present holder of a fee simple in the premises; that a mortgage upon the premises held by defendant Margaretta Harrison and given by the defendants Joseph and Mabel Greene is discharged; that defendants John and Elaine Cusick, the Greenes' tenants, must vacate the premises and that plaintiff is entitled to mesne profits for six years prior to the commencement of this action.
The question at issue is whether the purchaser at an execution sale under a judgment entered against the wife in a tenancy by the entirety acquires the wife's right of survivorship.
It is conceded by all parties to this appeal, as indeed they must, that the two most recent holdings on the question at issue, Zanzonico v. Zanzonico, 24 N.J. Misc. 153, 166 A.L.R. 964 (Sup. Ct. 1946); Dworan v. Miloszewski, 17 N.J. Super. 269 (Cty. Ct. 1952), are to the effect that a purchaser at execution sale of the wife's interest in an estate by the entirety does not acquire the wife's right of survivorship, so that upon the death of the husband the purchaser's rights are extinguished. Since neither of the two cases was determined in a court of last resort and since the law on the question has been in considerable confusion we shall undertake a re-examination of the question.
Involved are two fundamental problems: (A) the nature of an estate by the entirety at common law, and (B) the effect upon the estate by the entirety of the Married Women's Act (L. 1852, p. 407, now R.S. 37:2-12 et seq.).
A -- ESTATES BY THE ENTIRETY AT COMMON LAW.
At the outset we note that the industry of counsel and our own independent research have failed to reveal any English case decided prior to 1776, touching upon the question of whether a voluntary or involuntary conveyance of a husband's interest in a tenancy by the entirety carries with it his right of survivorship.
The unique form of concurrent ownership at common law, labeled estates by the entirety, may be traced into antiquity at least as far back as the 14th and 15th Centuries. 3 Holdsworth, History of the English Law (3 d ed. 1923), 128; Kepner, "The Effect of an Attempted Creation of an Estate by the Entirety in Unmarried Grantees," 6 Rutgers L. Rev. 550 (1952). The estate was unique because of the commonlaw concept of unity of husband and wife and the positing of that unity in the person of the husband during coverture. Putnam, "The Theory of Estates by the Entirety," 4 Southern L. Rev. 91 (1879). A husband and wife cannot hold by moieties or in severalty, said Littleton, "and the cause is, for that the husband and wife are but one person in law. * * *" Coke on Littleton, sec. 291. Blackstone, in his judicial capacity, noted:
"This estate [entirety] differs from joint-tenancy, because joint-tenants take by moieties, and are each seised of an undivided moiety of the whole, per my et per tout, which draws after it the incident of survivorship or jus accrescendi, unless either party chooses in his life-time to sever the jointure. But husband and wife, being considered in law as one person, they cannot, during the coverture take separate estates; and therefore upon a purchase made by them both, they cannot be seised by moieties, but both and each has the entirety. They are seised of their respective moieties, but both and each has the entirety. They are seised per tout, and not per my." Green v. King, 2 Wm. Blackstone 1211, 1214, 96 Eng. Rep. 713, 714 (C.P. 1777).
To the same effect see the opinion of Chancellor Kent in Rogers v. Benson, 5 Johns. Ch. 431 (N.Y. 1821).
The unity of the spouses theory was early recognized in New Jersey as the foundation upon which estates by the entirety rested. Den ex dem. Hardenbergh v. Hardenbergh, 10 N.J.L. 42 (Sup. Ct. 1828).
By virtue of the jus mariti and jure uxoris the husband was the dominant figure in the marital unity. Thus, in an estate by the entirety the husband had absolute dominion and control over the property during the joint lives. The husband was entitled to the rents, issues and
profits during the joint lives of himself and his wife, with the right to use and alienate the property as he desired, and the property was subject to execution for his debts. Washburn v. Burns, 34 N.J.L. 18 (Sup. Ct. 1869) (it should be noted that although Washburn was decided after the Married Women's Act, the court overlooked the effect of the act and decided the case on common-law principles); Freeman, Co-Tenancy and Partition (2 d ed. 1888), 140; 2 American Law of Property, § 6.6 p. 28 (1952); Phipps, "Tenancy by Entireties," 25 Temple L.Q. 24, 25 (1951). As stated by the court in Washburn v. Burns, supra:
"* * * the husband has an interest which does not flow from the unity of the estate, and in which the wife has no concern. He is entitled to the use and possession of the property during the joint lives of himself and wife. During this period the wife has no interest in or control over the property. It is no invasion of her rights, therefore, for him to dispose of it at his pleasure. The limit of this right of the husband is, that he cannot do any act to the prejudice of the ulterior rights of the wife." (34 N.J.L., at page 20)
The remaining question is, could the husband unilaterally alienate his right of survivorship at common law? Our study of the authorities convinces us that he could. The entire thrust of the authorities on the common law, with one notable exception, is to the effect that the only distinction between a joint tenancy and a tenancy by the entirety at common law was that survivorship could not be affected by unilateral action in the latter estate.
It was settled in England as early as the 14th Century that the husband could not defeat the wife's right of survivorship. In that case, reported in 2 Coke on Littleton, sec. 291, William Ocle was found guilty of treason (he murdered Edward II) and his estate was forfeited. Edward III granted the forfeited lands (owned jointly with the wife) to someone else. It was held that the husband's act of treason could not deprive the wife of her right of survivorship. Back v. Andrew, 2 Vern. 120 (1690), stands for the
same proposition. But to say that the husband cannot by his voluntary or involuntary act defeat the wife's right of survivorship is not to say that his own right of survivorship, subject to wife's right of survivorship, should he predecease her, cannot be alienated. The notion that the husband could not alienate his interests stems from Blackstone's comment, writing in 1765 to the following effect:
"And therefore, if an estate in fee be given to a man and his wife, they are neither properly joint tenants, nor tenants in common, for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout et non per my; the consequence of which is that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain in the survivor." 2 Blackstone's Commentaries (Tucker, ed. (1802), 181) (Emphasis supplied)
Kent, in his Commentaries first published in 1825, merely said: "Neither of them can alien so as to bind the other." 4 Kent's Commentaries 362.
Preston, a much quoted authority in early America, writing in England in 1820 declared categorically:
"An alienation by the husband alone, in the lifetime of the wife, will, in the event of his surviving his wife, be good for the share of himself and his wife." (1 Preston on Estates 134 (1820))
Blackstone's enigmatic statement that "neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain in the survivor" was early limited in New Jersey. In Den ex dem. Wyckoff v. Gardner, 20 N.J.L. 556 (Sup. Ct. 1846), decided prior to the Married Women's Act, and hence under common-law principles, the issue was whether the husband could mortgage the premises in an estate by the entirety without the consent of his wife. In that case, Carpenter, J., held:
"It is said, in the cases cited, and in the usual authorities which treat of this peculiar estate that neither husband nor wife, separately and without the assent of the other, can dispose of or convey away
any part. That the husband cannot alien, and much less devise that estate, the whole of which belong to his wife as well as to himself. The conveyance of the husband is doubtless void as against the wife, she surviving her husband, and as against those claiming under her; but can it be said to be void as against the husband himself? Has the husband no power at all over the land during coverture, not even to make a lease? If it be so, notwithstanding marital rights, the wife would seem to have an absolute veto, and her consent would be necessary, not only to convey the estate, but even to dispose of the possession, during the husband's life and during coverture. As urged in the argument, in such case, the wife would have a more controlling influence over an estate like this, than when the fee is in herself, which cannot be. The general language of the authorities is to be restrained to the case itself under consideration, and the obvious meaning of the passages relied on, is more guardedly expressed by Sir William Grant, in a case recited. 'The husband, as against her, cannot pass any right, title or interest; but if she survive, the whole must accrue to her.' Glaister v. Hewer, 8 Ves. Jr. 199. 'The husband alone,' says Chancellor Kent, 'may grant or charge the wife's land, during their joint lives, and if he be tenant by the curtesy during his own life; but he cannot alien or incumber it, if it be a freehold estate, so as to prevent the wife, or her heirs, after his death, from enjoying it discharged from his debts or engagements.' 2 Kent's Com. 133, 5 th Ed. This doctrine is as equally applicable to the estate now under consideration, as to the case when the fee is in herself. The husband has the right of possession and control during coverture. Though he cannot convey the estate at all events, cannot convey so as to prejudice her rights in case she survive; yet he may demise, alien or mortgage his interest during his own life. Barber v. Harris, 15 Wend. [N.Y.] 615; Jackson [ex dem. Suffern] v. McConnell, 19 Wend. [N.Y.] 175.
But does it lie in the mouth of the defendant in possession of the premises, in an action of ejectment brought against him upon his own mortgage deed, to deny his right to mortgage? Whatever may be the effect of ordinary deeds of conveyance without warranty in concluding a grantor, who has released or conveyed without interest, yet in relation to mortgages the question is well settled. By an equitable estoppel, based upon the legal fraud which would be otherwise permitted, one who mortgages land as his own, upon suit thereupon brought against him, shall not be permitted to derogate from his own mortgage, by denying his title, or by setting up title in any third person." (20 N.J.L., at pages 559-561)
"* * * The counsel for the defendant seemed to think, from the general expression found in the books, 'that where an estate is conveyed to husband and wife, neither can convey or dispose of the
same or any part of it without the concurrence of the other,' and that the husband is precluded from leasing the land or charging it by mortgage. The true meaning of such expression is, that neither can make such a disposition of the estate, without the concurrence of the other, as will affect the right and interest of the other. The mortgage by the husband does not affect the wife's right or interest in the lands; if she survive, the whole title and estate will vest in her freed from the mortgage. I am of the opinion that judgment should be entered for the plaintiff." (20 N.J.L. at page 563)
Thus, the view that neither spouse could alienate his interest in the estate without the consent of the other, was interpreted to mean that the husband could not alienate so as to prejudice the wife's rights in the estate, and it is clear that the wife's only right at common law was her right of survivorship. No prejudice would result to the wife's interests at common law by the husband's alienation of his right of survivorship. If he predeceased her, she would take a fee. If she predeceased him, her interests were cut off anyway. During his lifetime she had no interest in the estate.
That the husband could alienate his right of survivorship at common law is buttressed by the fact that at common law, in instances where property was held in the wife's name alone, the husband had the right to possession and had the absolute control over the rents, issues and profits during coverture. He could freely alienate that interest and it was subject to execution by his creditors. I American Law of Property, supra, § 5.51. It would be incongruous to suggest that the husband could convey at the common law no greater interest in property held jointly by his wife and himself than in property held solely by his wife.
Most courts and commentators have taken the position that at common law the husband's right of survivorship was alienable, so that the purchaser or grantee would take the entire fee in the event the wife predeceased the husband and the interest was subject to execution for his debts. See e.g., Howell v. Folsom, 38 Or. ...