Judgment affirmed.

Hoffar V. Dement

5 Gill, (Md.) 132. - 1847.

Assumpsit by one of the heirs-at-law of Joseph N. Stonestreet, deceased, for use and occupation of lands of said decedent after his death. The court instructed the jury that plaintiffs are not entitled to recover for the reason, among others, that the several heirs of J. N. Stonestreet should have been united as plaintiffs. Judgment for defendants. Plaintiffs appeal.

Spence, J. - * * * The first question to be disposed of is, whether the county court erred in deciding that the plaintiffs could not recover upon the first count in the declaration? We think they did not. The defendant's testator entered upon the land under a purchase from Nicholas Stonestreet, subsequent to the death of Joseph Stonestreet; there is no evidence of any express demise or agreement, to rent by the heirs of Joseph Stonestreet, jointly or severally; in fact the evidence is conclusive that there was none. The plaintiffs, to maintain this action, then must rely upon an implied demise or agreement to establish the relation of landlord and tenant between George Dement, the defendant's testator, and the children of J. N. Stonestreet.

Tindal, C. J., in the case of Decharms v. Horwood, 10 Bingham's R. 526, expresses his opinion in this unequivocal language: " The authorities all agree that whatever be the number of coparceners, they all constitute but one heir - they are connected together by unity of interest and unity of title." In Maryland the children of parents who die intestate seised in fee of lands, tenements, or hereditaments, take as coparceners, and are so treated by the act of 1820, ch. 191, § 5; and the conclusion is irresistible that if they cannot separately maintain an action of assumpsit, for money had and received, against a person who had received the rent in the character of trustee, as was decided in the case of Decharms v. Horwood, that they cannot recover in separate actions upon an implied demise or agreement to rent, upon a count for use and occupation.

4. Estates by the Entirety.

Bertles V. Nunan

92 New York, 152. - 1883.

Suit to compel a purchaser of lands to complete the purchase. The lands in question were conveyed "to Cornelius Day and Hannah Day, his wife, . . . their heirs and assigns." Cornelius died, and thereafter Mrs. Day remained in possession of the premises until her death. The premises were sold by the administratrix of Mrs. Day for the payment of debts against her estate. Purchaser asserts that Mrs. Day was not seised of more than an undivided half interest and that plaintiff cannot give a good title to the whole under the surrogate's order. Judgment for plaintiff below. Defendant appeals.

Earl, J. - On the first day of August, 1868, certain land, which is the subject of this controversy, was conveyed by deed to Cornelius Day and Hannah Day, his wife, and to their heirs and assigns; and the sole question for our determination is whether the grantees took the land as tenants in common or whether each took and became seised of the entirety.

By the common law, when land was conveyed to husband and wife, they did not take as tenants in common, or as joint tenants, but each became seised of the entirety, per tout, et non per my, and upon the death of either the whole survived to the other. The survivor took the estate, not by right of survivorship simply, but by virtue of the grant which vested the entire estate in each grantee. During the joint lives the husband could, for his own benefit, use, possess and control the land, and take all the profit thereof, and he could mortgage and convey an estate to continue during the joint lives, but he could not make any disposition of the land that would prejudice the rights of his wife in case she survived him.

This rule is based upon the unity of husband and wife, and is very ancient. It must have had its origin in the archaic period of our race, and it colored all the relations of husband and wife to each other, to the law and to society. In 1 Blackst. Com. 442, the learned author says: "Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties and disabilities that either of them acquired by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason a man cannot grant anything to his wife or enter into covenant with her; for the grant would be to suppose her separate existence, and to covenant with her would be only to covenant with himself." They were not allowed to give evidence against each other, mainly because of the union of person, for if they were admitted to be witnesses for each other they would contradict one maxim of the common law, nemo in propria causa testis esse debet; and if against each other they would contradict another maxim, nemo tenetur se ipsum accusare.

As one of the consequences of the same rule, the husband was made responsible to society for his wife. He was liable for her torts and frauds, and, in some cases, for her crimes.

This, and the other rules regulating the effect of marriage at common law, were not designed to degrade and oppress the wife.

Blackstone (2 Com. 445) says: "Even the disabilities which the wife lies under are, for the most part, intended for her protection and benefit; so great a favorite is the female sex of the laws of England."

The common-law rule as to the effect of a conveyance to husband and wife continued in force, notwithstanding the Revised Statutes, which provided 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 in joint tenancy." 3 R. S. 2179 (7th ed.);1 Dios v. Glover, 1 Hoff. Ch. 71; Torrey v. Torrey, 14 N. Y. 430; Wright v. Saddler, 20 Id. 320. In the latter case Comstock, J., said: "It appears to be well settled that this statute does not apply to the conveyance of an estate to husband and wife. They are regarded in law as one person."