It is true that a conveyance of this kind, if made to two persons who were not husband and wife, would, at common law, have created a joint tenancy. But our statute provides that every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be a joint tenancy. 1 R. S. 727, § 44. This statute did not reach an estate by the entirety, nor did the statutes of 1848 and 1849, and 1860 and 1862. Berths v. Nunan, supra. It, therefore, still exists under our law.

We have seen, however, that a tenancy by the entirety is not a joint tenancy in form or substance. Upon what principle should the termination of a tenancy by the entirety, resulting from an absolute divorce, be changed into a joint tenancy in the face of our statute relating to joint tenancies? The conveyance did not expressly declare that the tenancy was to be a joint tenancy, and, therefore, when the original character of the tenancy by the entirety is changed, it cannot be transformed into that of a joint tenancy without a clear violation of our statute.

The counsel for the defendant urges that we are giving by this decision a retroactive effect to a decree of divorce in a case not warranted by the statute, and in violation of the well-settled rule in this State as to the effect of such a decree. He says that we change the effect of the deed of conveyance and that the decree of divorce not only severs the unity of person from the time of its entry, but that we allow it to date back to the date of the conveyance, and to give an effect to such conveyance that it did not have at the time of its execution. We think not.

We do not at all question the contention of the defendant's counsel that a decree of divorce in this State only operates for the future, and has no retroactive effect or any other effect than that given by the statute. But we hold that the character of the estate conveyed was such in its creation that it depended for its own continuance upon the continuance of the marital relation, and when that relation is severed as well by absolute divorce as by death, the condition necessary to support the continuance of the original estate has ceased, and the character of the estate has for that reason changed. The estate does not revest in the grantor or his heirs, for no such condition can be found in the law or in the nature of the estate, and it must, therefore, remain in the grantees, but by an altered tenure. I heir holding is now a holding of two separate persons, and for the reasons already given such holding should be by tenancy in common, and of course without any survivorship.

I think the contention that the first wife is entitled to the whole of the estate as the survivor of her husband cannot be maintained. although the question is new in this State, it has been somewhat debated in the courts of some of the other States. In Harrer v. Wall-ner, 80 III. 197, and Lash v. Lash, 58 Ind. 526, and Ames v. Norman, 4 Sneed, 683, similar views to those we have herein stated are set forth. A contrary decision has been made in Michigan in the case of Lewis, reported in 48 Northwestern Reporter at 680. We have read the opinion in that case, but we feel that our own view is more in accord with legal principles, and we cannot, therefore, follow it.

Upon the defendant's appeal, the judgment ought to be affirmed.

Upon the appeal of the plaintiff, her counsel contends that there is a condition annexed to the estate by the entirety which is implied by law, and the condition is that each of the grantees shall remain faithful to the obligations of the married state and shall not by his or her misconduct cause a dissolution of the marriage relation upon which the estate depends. I find no warrant for implying any such condition in the character of the holding, and still less for the result which, as he claims, flows from a violation of such condition. Its violation (judicially determined) results according to the plaintiff's argument, in the immediate vesting of the whole estate in the innocent party to the marriage, just the same as if the other party thereto were actually dead instead of divorced. None of the authorities treats the estate as dependent upon any such condition, and however proper it might be to enact by legislative authority a condition of that nature, this court has not that power. * * *

Judgment affirmed.

Hiles V. Fisher

144 New York, 306. - 1895.

Ejectment. The premises in question were conveyed to defendant as husband and wife. The husband, in 1886, mortgaged the premises to secure certain of his debts. In 1890 Fisher quitclaimed the land in question to his wife. The mortgage was foreclosed in 1892, and plaintiff acquired the title under the foreclosure. The plaintiff now claims that he should recover the premises with right to hold the same during the joint lives of husband and wife, and in fee in case the husband survives the wife. Mrs. Fisher claims the mortgage was void as she did not sign it. The General Term held with the plaintiff. Defendant appeals.

Andrews, Ch. J. - It was decided in Berths v. Nunan, 92 N. Y. 152, that the separate property acts relating to the rights of married women had not abrogated the common-law doctrine, that under a conveyance to husband and wife they take not as tenants in common, nor as joint tenants, but by the entirety, and upon the death of either the survivor takes the whole estate. In that case the husband had died, leaving his wife surviving, and the question was whether the wife as survivor took upon the death of her husband the entire fee under the doctrine of the common law. The question, what change, if any, had been wrought by the separate property acts in respect to the common-law rights of the husband to control and use the property conveyed to husband and wife during their joint lives, was not considered or decided, but was expressly reserved on the ground that it was not involved in the case then before the court. That question is involved in the present case and must now be decided.