But the claim is made that the legislation in this State, in the years 1848, 1849, 1860 and 1862, in reference to the rights and property of married women, has changed the common-law rule so that now when land is conveyed to husband and wife they take as tenants in common, as if unmarried. In construing these statutes the rule must be observed, and usually has been observed, that statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language used in the statutes absolutely requires.
Section 3 of chapter 200 of the Laws of 1848, as amended by chapter 375 of the Laws of 1849, provides that "any married female may take by inheritance or by gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise, real and personal property, or any interest or estate therein, and the rents, issues and profits thereof, in the same manner and with like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband or be liable for his debts." It is not the effect of this section, and plainly was not its purpose, to change the force and operation of a conveyance to a wife. It does not enlarge the estate which a wife would otherwise take in land conveyed to her, and whatever the effect of a conveyance to a husband and wife was prior to that statute, so it remains. If the operation of such a conveyance was to convey the entire estate to each of the grantees, so that each became seised of the entirety, there is nothing in the force or effect of the language used to change the operation of such a deed so as to make the grantees tenants in common. The section gives the wife no greater right to receive conveyances than she had at common law, but its sole purpose was to secure to her during coverture what she did not have at common law, the use, benefit and control of her own real estate, and the right to convey and devise it as if she were unmarried.
By § 1 of the act (chapter 90 of the Laws of 1860) it is provided that "the property, both real and personal, which any married woman now owns as a sole and separate property; that which comes to her by descent, devise, bequest, gift or grant; that which she acquires by her trade, business, labor or services, carried on or performed on her sole and separate account; that which a woman married in this State owns at the time of her marriage, and the rents, issues and profits of all such property, shall, notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected and invested by her in her own name, and shall not be subject to the interference or control of her husband, or liable for his debts;" and in § 3 of the Act of 1860, as amended by the act, chapter 172 of the Laws of 1862, it is provided that "any married woman possessed of real estate as her separate property may bargain, sell and convey such property, and enter into any contract in reference to the same, with the like effect, in all respects, as if she were unmarried." There is great plausibility in the claim that these provisions in the Acts of 1860 and 1862 have reference only to the separate property of a wife, which she owns separate from her husband, and that they have no reference whatever to land conveyed to husband and wife, in which, by the common law, each became seised of the entirety. The language is not so strong and direct as that of the Revised Statutes, which provided that a grant to two or more persons shall create a tenancy in common, and which was yet held not to make husband and wife tenants in common. But it is not necessary now to determine that these provisions of law do not apply to lands conveyed to husband and wife, and we pass that question. It is sufficient now to hold that they do not limit or define what estate the husband and wife shall take in lands conveyed to them jointly. Their utmost effect is to enable the wife to control and convey whatever estate she gets by any conveyance made to her solely or to her and others jointly.
1 N. Y. R. P. L. § 56. - Ed.
The claim is made that the legislation referred to has destroyed the common-law unity of husband and wife, and made them substantially separate persons for all purposes. We are of the opinion that the statutes have not gone so far. The legislature did not intend to sweep away all the disabilities of married women depending upon the common-law fiction of a unity of persons, as a brief reference to the statutes will show. The Act of 1848 gave no express authority to a married woman to grant or dispose of her property; such authority came by the Act of 1849. The legislature clearly understood that the common-law unity of husband and wife, and the disabilities dependent thereon still remained, notwithstanding those acts, because in 1860, by the act of that year, it empowered a married woman to perform labor and to carry on business on her separate account; to enter into contracts in reference to her separate real estate; to sue and be sued in all matters having relation to her property, and to maintain actions for injuries to her person. Until 1867 (chap. 782) husbands retained their common-law rights of survivorship to the personal property of their wives. It was not until chapter 887 of the laws of the same year that husband and wife could, in civil actions, be compelled to give evidence for or against each other; and in 1876 (chap. 182), for the first time, they could be examined in criminal proceedings as witnesses for each other; and provision was first made in the Penal Code (§ 715) that they could, in criminal proceedings, be witnesses for and against each other.
From this course of legislation it is quite clear that the legislature did not understand that the common-law rule as to the unity of husband and wife had been abrogated by the acts of 1848, 1849 and 1860, and that whenever it intended an invasion of that rule, it made it by express enactment. Still more significant is the act, chapter 472 of the Laws of 1880, which provides that "whenever husband and wife shall hold any lands or tenements as tenants in common, joint tenants or as tenants by entireties, they may make partition or division of the same between themselves," by deeds duly executed under their hands and seals. Here the disability of husband and wife, growing out of their unity of person, to convey to each other is recognized, as is also the estate by entireties created by a deed to them jointly.