I. Kinds of joint interests and characteristics of each.

1. Estates in Joint Tenancy.

Babbitt V. Day

41 New Jersey Equity, 392. - 1886. [Reported herein at p. 685.]1

Haughabaugh V. Honald

1 Constitutional Court (S. C), go. - 1812.

This was an action to recover a moiety of 100 acres, originally granted to Anthony Slack. - A. S. by his last will,in 1761, devised the 100 acres to his wife and three daughters, and their heirs. The widow and three daughters occupied the land after his death; afterwards the widow died intestate; then one of the daughters died an infant and unmarried. The two surviving daughters married; one of them with Mark Honald; the other with John Seastrunk. Seas-trunk and Honald, and their wives, lived on the same tract, and a fence divided their possessions. In 1786 Mark Honald's wife died, leaving one son, David Honald. Mark Honald continued in possession after his wife's death, married a second wife, and died in the year 1795, leaving a widow, the defendant, Hannah Honald, who has continued in possession from the time of his death. John Seastrunk and his wife continued in possession of their part until 1798, when they conveyed a moiety of the said 100 acres to one John Wain-wright; which moiety they describe as bounded on the upper side by part of the said tract held by the heirs of Mark Honald. This deed was executed by the wife of Seastrunk, but she did not release her inheritance. John Wainwright conveyed the part purchased of Seastrunk to the plaintiff. David Donald, after he became of age, conveyed to the plaintiff the other moiety.

1 As to the "unities" needful to constitute an estate in "joint tenancy" see Spencer v. Austin, p. 944, infra. - Ed.

The defendant contended that at the death of the wife of Mark Honald, her interest survived to her sister, Mrs. Seastrunk, and that nothing passed to the plaintiff by the conveyance of David Honald.

His Honor charged the jury that, on the death of Mrs. Honald her part survived to Mrs. Seastrunk, her sister; and no estate in the land descended to David Honald, the lessor of the plaintiff.

Verdict for defendant. Motion for a new trial.

Colcock, J. - It is conceded that the daughters of Anthony Slack held as joint tenants. The only question then is, "Was there any division in their lives of the property?" It does not appear that there was any division, or any act of the parties, which the court can construe into a severance of the estate. On the death of Mrs. Honald, her sister took the whole by survivorship. The land did not descend to the son, and therefore he had no right to convey to the plaintiff. As the plaintiff must recover on the strength of his own title, the defendant's need not be inquired into. I am of opinion the motion should be rejected.

Brevard, J. - The plaintiff must recover in this action on the strength of his own title, and not on the weakness of his adversary's. It was contended for the plaintiff: 1st. That on the death of Mrs. Honald in 1786, the estate did not vest in Mrs. Seastrunk, by survivorship, for that the act of Assembly of 1748, P. L. 217, takes away the right of survivorship. 2d. That the evidence given in the case was sufficient to prove a severance of the joint estate before Mrs. Honald's death. My opinion is the verdict ought to stand. The act of Assembly, 1748, only provides an easier mode for obtaining partition of joint estates; but does not change their nature or properties. The jus accrescendi was abolished by the act of 1791, and not before. This act is a legislative declaration of what the law was before that time. On the death of Mrs. Honald, in 1786, the whole estate vested in her sister, unless the joint tenancy had been severed in her life. If there was clear proof, or even such evidence as would amount to a strong probability, of a severance between the joint tenants, by agreement; or, by a bargain and sale of Mrs. Seas-trunk's moiety, which would operate a severance, before Mrs. Honald's death, my opinion would be different. A parol agreement and partition was good at common law, Co. Lit. 165, 171; and notwithstanding the statute of frauds, such a partition may be valid, if the line be sufficiently marked on the ground, and manifested by a separate distinct possession for a sufficient length of time. 1 Binney, 216. The evidence in this case was too vague and slight to found a presumption of a legal and valid partition, even by parol. There was no evidence of agreement to divide. The joint tenants were both married women, and would not be bound by any agreement made by their husbands, unless their consent was obtained agreeably to law. The evidence of a separate possession was too loose to afford any solid ground to presume a partition. This evidence consists chiefly of proof that Mark Honald was in possession of a part until his death; and that in 1798 John Seastrunk and his wife conveyed to John Wainwright a moiety of the tract; and the conveyance in describing the land states that it is bounded on the upper side by part of the said tract held by the heirs of Mark Honald. Mrs. Seastrunk is joined in this deed, but there is no renunciation of her inheritance. The argument drawn from the language of this deed in the description of the premises has no weight. It cannot by intendment and implication divest Mrs. Seastrunk of her inheritance. For anything that appears to the Court, she has never consented to part from her estate. The deed could not estop her, even if it were more explicit than it is. * * *

Since, therefore, there is no will, no proof whatever of partition, agreeably to the act of 1748, and the primogeniture act does not apply, it follows that Mrs. Seastrunk took the whole estate by survivorship, and nothing passed to the plaintiff by the deed of David

Honald.

Motion refused.

Thornburg V. Wiggins

135 Indiana, 178. - 1893.

Dailey, J. - This was an action instituted in the court below, in two paragraphs, in the first of which appellees allege, in substance, that on and before December 15, 1884, one Lemuel Wiggins was the owner of a certain tract of real estate therein described, containing eighty acres; that on said day said Lemuel and his wife, Mary, executed and delivered to the appellees [Wiggins and wife] a warranty deed, conveying to them the fee-simple of said real estate; that at the time of said conveyance the appellees were, ever since 'nave been, and now are, husband and wife; that said deed conveyed to the appellees the title to said real estate which they took and accepted, ever since have held, and now hold by entireties and not otherwise; that appellees hold their title to said real estate by said deed of Lemuel Wiggins, and not otherwise; that on the 24th " day of April, 1877, Isaac R. Howard and Isaac N. Gaston, who were defendants below, recovered a judgment in the Randolph Circuit Court for the sum of $403.70 and costs, against one John T. Burroughs and the appellee, Daniel S. Wiggins, as partners, doing business under the firm name of Burroughs & Wiggins; that on May 12, 1886, said Howard and Gaston caused an execution to be issued on said judgment and placed in the hands of the appellant, Thornburg, as sheriff of said county, and directed him to levy the same on said real estate, and that said sheriff did, on the 25th day of May, 1886, levy said execution on said real estate, or on the one-half interest in value thereof, taken as the property of said appellee, Daniel S. Wiggins, to satisfy said writ; that pursuant to the levy thereof said sheriff proceeded by the direction of said Howard and Gaston to advertise said real estate for sale under said execution and levy to make said debt, and did, on the 8th day of June, advertise the same for sale on the 3d day of July, 1886, and will, on said day, sell the same, unless restrained and enjoined from so doing by the court; that said Daniel S. Wiggins has no interest in said premises, subject to sale thereon; that the appellees hold the title thereto as tenants by entireties and not otherwise; that the sale of said tract on said execution would cast a cloud on the appellee's title," etc.