Court of Appeals of the State of New YorkOct 6, 1885
100 N.Y. 12 (N.Y. 1885)
100 N.Y. 122 N.E. 388

Argued June 1, 1885

Decided October 6, 1885

David Gerber for appellants. H.M. Gesheidt for respondent.

This case is controlled by the decision in Bertles v. Nunan ( 92 N.Y. 152). The common-law rule, that when land is conveyed to husband and wife they do not take as tenants in common, or as joint tenants, but each becomes seized of the entirety, per tout and not per my, and that on the death of either the whole survives to the other, was held in that case to be still subsisting in this State, notwithstanding the acts in relation to married women. The act of 1880 (Chap. 472), which allows husband and wife to make division between themselves of lands thus held, was before us in that case, but was not regarded as abrogating the former rule. At all events it could not affect the title in question in this action as the conveyance to Jacob Bram and his wife was made in 1878. The seizin of the entirety by each, and the right of survivorship, could not be divested by a subsequent statute, as those rights vested by virtue of the grant and not of mere succession. The act of 1880 could not, therefore, so operate as to authorize either the husband or wife separately to convey to a third party. The deed executed by Mrs. Bram to the plaintiff conveyed no title and he could not maintain an action for partition.

The exceptions to the conclusions of the referee to the contrary are well taken and require a reversal of the judgment.

It is unnecessary to discuss the extraneous questions raised in the respondent's points as to the circumstances attending the purchase of the property.

Judgment reversed and new trial ordered, costs to abide the event.

All concur.

Judgment reversed.