The Chancellor:—
This is a suit brought by the vendor for the specific performance of a contract for the sale of lands which had been conveyed in fee simple by deed dated September 24, 1869, to him and his wife, who died September 12, 1892.
The respondent alleges that he refused to accept the deed solely on the ground that the vendor, the surviving husband, does not, as such, have an estate in severalty in fee simple in the land; his contention being that by the deed the vendor and his wife did not take an estate by the entirety, but became tenants in common so that the wife’s moiety descended to her heirs. •
Inasmuch as by the common law of England, if a deed be made to a husband and wife, both are seized of the entirety, the estate being thus distinguished from a joint tenancy where the seisin is said to be per my et per tout—by half or moiety and by all; and, inasmuch as it is a necessary consequence of this estate, that neither the husband nor the wife can dispose of any part without the assent of the other, but each being seized of the entirety, immediately upon the death of either the whole remains in the survivor as an estate in severalty, it follows that the meaning of respondent’s contention is, that this familiar common law estate where the seisin of husband and wife is of the entirety does not exist in this State.
[412]*412The authorities cited by the respondent’s counsel show that in two states, Connecticut and Ohio, it has been always held that this species of estate was never adopted as a part of the common law of property, and it may well be that it has not been adopted by some of the newer states.
In Delaware, our first State Constitution, adopted September 20, 1776, provided, by Article 25, that “the common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the Legislature, such parts only excepted as are repugnant to the rights and privileges contained in this Constitution and the declaration of rights, &c. agreed to by this convention.” Delaware Laws Appendix, 89.
The exceptions are classified and discussed by Chancellor Bates in Clawson vs. Primrose, 4 Del. Ch. 643, and after analyzing them, he says (page 667) :
“But, on the other hand, our early legislative and judicial history shows conclusively that what may be termed the common law of property was received as an entire spstem, subject to alterations by the Legislature only. Rights of property and of person are fundamental rights necessary to be defined and protected in every civil society. The common law, as a system framed to this very end, could not be deemed inapplicable in the colonies for want o'f a subject-matter, or as being needless or superfluous or unacceptable, which is the true sense of the limitation in question. Certain it is, as a matter of history, that our ancestors did not so treat it. Perhaps no branch of the common law was adopted in this State so entire as this law of real estate, the whole body of which, with all its rules for defining the nature and quantity of estates in lands, for prescribing the modes of acquiring title to them, and for regulating their transmission was, from the beginning, administered by our Courts substantially as in England with such modifications only as were made from time to time by the Legislature.”
It is true that counsel for the respondent has not denied that estates in entirety were at one time a part of the [413]*413“common law of property" in this State, yet I have deemed it necessary to state this with some fullness of detail as an introduction to the direct consideration of the brief submitted by him, which presents and fortifies his contention with all the arguments and authorities discoverable.
Estates in joint tenancy were very early looked upon with disfavor in this country, and statutes allowing partition of such estates, or destroying the incident of survivorship, or merely abrogating every presumption in favor of joint tenancy were generally adopted.
As estates in joint tenancy could only arise by the purchase or acquisition by the act of the parties, never by descent, or act of law, an act passed in our own State at an early date (February 16, 1816) aided the general dislike of such estates so effectively as to render them extremely rare, if not practically obsolete. The Delaware statute is as follows :
“No estate in joint tenancy, in lands, tenements, or hereditaments, shall be held, or claimed, by, or under any grant, devise, or conveyance made to any persons, other than to executors or trustees, unless the premises therein mentioned shall be expressly granted, devised, or conveyed to such persons, to be held as joint tenants and not as tenants in common.” Rev. Code (1893) 656, ch. 86, sec. 1.
The common law of real estate has always been too well understood in this State to permit the question to be raised, that this statute affected the nature of the estate conveyed by a deed to husband and wife. The training of the Delaware Bar rendered the distinction between an estate in joint tenancy and an estate in entirety literally horn book law. The question has been raised, however, in a number of states under similar statutes, although in nearly every one the correct distinction has been recognized, and the conveyance to husband and wife held to create not an estate in joint tenancy, but an estate in entirety which was in nowise affected by such statutes.
Chancellor Kent, in passing upon the question, said:
“The same words of conveyance, which could make two [414]*414other persons joint tenants, will make the husband, arid wife tenants of the entirety. This is a nice distinction laid down in the old books, and which has continued to be law to this day; and the special provision in our statute, that no estate in joint tenancy shall be held under any grant or conveyance, unless the premises were expressly declared to pass, not in tenancy in-common, but in joint tenancy, does not reach this case, for the estate of the husband and wife is not a joint tenancy. (Litt. s. 291, 665. Co. Litt. 187, b. Bro. Abr. tit. cm in vita, pi. 8; Back vs. Andrews, 2 Vern. 120; Green vs. King, 2 W Black Rep. 12 11; Jackson vs. Stevens, 16 Johns. Rep. 110.) ” Rogers vs. Benson, 5 Johns. Ch. 431, 437.
In the Virginia Court of Appeals, Judge Carr in passing upon the effect of a statute providing that all joint tenants might be compelled to make partition, stated the distinction between the estates with perfect precision and accuracy, as follows:
“Now, although these laws use the broadest terms, ‘all joint tenants that be, or hereafter shall be, of estates of inheritance,’ &c., may be compelled to make partition, &c.; yet it is most certain, that they have never been supposed to reach the-case of lands given in fee, (or for any lesser estate,) to husband and wife; for all the books, from the oldest I have been able to examine, down to the present day, agree, una voce, in this; that husband and wife, not only cannot compel each other to make partition, but that even if they concur in the wish, they have not the power, to sever the tenancy. It is a sole, and not a joint-tenancy. They have no moieties. Each holds the entirety. They are one
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The Chancellor:—
This is a suit brought by the vendor for the specific performance of a contract for the sale of lands which had been conveyed in fee simple by deed dated September 24, 1869, to him and his wife, who died September 12, 1892.
The respondent alleges that he refused to accept the deed solely on the ground that the vendor, the surviving husband, does not, as such, have an estate in severalty in fee simple in the land; his contention being that by the deed the vendor and his wife did not take an estate by the entirety, but became tenants in common so that the wife’s moiety descended to her heirs. •
Inasmuch as by the common law of England, if a deed be made to a husband and wife, both are seized of the entirety, the estate being thus distinguished from a joint tenancy where the seisin is said to be per my et per tout—by half or moiety and by all; and, inasmuch as it is a necessary consequence of this estate, that neither the husband nor the wife can dispose of any part without the assent of the other, but each being seized of the entirety, immediately upon the death of either the whole remains in the survivor as an estate in severalty, it follows that the meaning of respondent’s contention is, that this familiar common law estate where the seisin of husband and wife is of the entirety does not exist in this State.
[412]*412The authorities cited by the respondent’s counsel show that in two states, Connecticut and Ohio, it has been always held that this species of estate was never adopted as a part of the common law of property, and it may well be that it has not been adopted by some of the newer states.
In Delaware, our first State Constitution, adopted September 20, 1776, provided, by Article 25, that “the common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the Legislature, such parts only excepted as are repugnant to the rights and privileges contained in this Constitution and the declaration of rights, &c. agreed to by this convention.” Delaware Laws Appendix, 89.
The exceptions are classified and discussed by Chancellor Bates in Clawson vs. Primrose, 4 Del. Ch. 643, and after analyzing them, he says (page 667) :
“But, on the other hand, our early legislative and judicial history shows conclusively that what may be termed the common law of property was received as an entire spstem, subject to alterations by the Legislature only. Rights of property and of person are fundamental rights necessary to be defined and protected in every civil society. The common law, as a system framed to this very end, could not be deemed inapplicable in the colonies for want o'f a subject-matter, or as being needless or superfluous or unacceptable, which is the true sense of the limitation in question. Certain it is, as a matter of history, that our ancestors did not so treat it. Perhaps no branch of the common law was adopted in this State so entire as this law of real estate, the whole body of which, with all its rules for defining the nature and quantity of estates in lands, for prescribing the modes of acquiring title to them, and for regulating their transmission was, from the beginning, administered by our Courts substantially as in England with such modifications only as were made from time to time by the Legislature.”
It is true that counsel for the respondent has not denied that estates in entirety were at one time a part of the [413]*413“common law of property" in this State, yet I have deemed it necessary to state this with some fullness of detail as an introduction to the direct consideration of the brief submitted by him, which presents and fortifies his contention with all the arguments and authorities discoverable.
Estates in joint tenancy were very early looked upon with disfavor in this country, and statutes allowing partition of such estates, or destroying the incident of survivorship, or merely abrogating every presumption in favor of joint tenancy were generally adopted.
As estates in joint tenancy could only arise by the purchase or acquisition by the act of the parties, never by descent, or act of law, an act passed in our own State at an early date (February 16, 1816) aided the general dislike of such estates so effectively as to render them extremely rare, if not practically obsolete. The Delaware statute is as follows :
“No estate in joint tenancy, in lands, tenements, or hereditaments, shall be held, or claimed, by, or under any grant, devise, or conveyance made to any persons, other than to executors or trustees, unless the premises therein mentioned shall be expressly granted, devised, or conveyed to such persons, to be held as joint tenants and not as tenants in common.” Rev. Code (1893) 656, ch. 86, sec. 1.
The common law of real estate has always been too well understood in this State to permit the question to be raised, that this statute affected the nature of the estate conveyed by a deed to husband and wife. The training of the Delaware Bar rendered the distinction between an estate in joint tenancy and an estate in entirety literally horn book law. The question has been raised, however, in a number of states under similar statutes, although in nearly every one the correct distinction has been recognized, and the conveyance to husband and wife held to create not an estate in joint tenancy, but an estate in entirety which was in nowise affected by such statutes.
Chancellor Kent, in passing upon the question, said:
“The same words of conveyance, which could make two [414]*414other persons joint tenants, will make the husband, arid wife tenants of the entirety. This is a nice distinction laid down in the old books, and which has continued to be law to this day; and the special provision in our statute, that no estate in joint tenancy shall be held under any grant or conveyance, unless the premises were expressly declared to pass, not in tenancy in-common, but in joint tenancy, does not reach this case, for the estate of the husband and wife is not a joint tenancy. (Litt. s. 291, 665. Co. Litt. 187, b. Bro. Abr. tit. cm in vita, pi. 8; Back vs. Andrews, 2 Vern. 120; Green vs. King, 2 W Black Rep. 12 11; Jackson vs. Stevens, 16 Johns. Rep. 110.) ” Rogers vs. Benson, 5 Johns. Ch. 431, 437.
In the Virginia Court of Appeals, Judge Carr in passing upon the effect of a statute providing that all joint tenants might be compelled to make partition, stated the distinction between the estates with perfect precision and accuracy, as follows:
“Now, although these laws use the broadest terms, ‘all joint tenants that be, or hereafter shall be, of estates of inheritance,’ &c., may be compelled to make partition, &c.; yet it is most certain, that they have never been supposed to reach the-case of lands given in fee, (or for any lesser estate,) to husband and wife; for all the books, from the oldest I have been able to examine, down to the present day, agree, una voce, in this; that husband and wife, not only cannot compel each other to make partition, but that even if they concur in the wish, they have not the power, to sever the tenancy. It is a sole, and not a joint-tenancy. They have no moieties. Each holds the entirety. They are one in law, and their estate one and indivisible. If the husband alien, if he suffer a recovery, if he be attainted; none of these will affect the right of the wife, if she survive him. Nor is this by the jus accrescendi. There is no such thing between them. That takes place, where, by the death of one joint tenant, the survivor receives an accession, something which he had not before, the right of the deceased. But husband and wife have the whole, from the moment of the conveyance to them; and the death of [415]*415either cannot give the survivor more.” Thornton vs. Thornton, 3 Rand. 179, 183.
It is not necessary to quote further from the cases, but counsel for the complainant has cited the following, all of which I find, upon examination, are in accord with the cases from which I have quoted. Craft vs. Wilcox, 4 Gill 504; Marburg vs. Cole, 49 Md. 402; Den vs. Hardenbergh, 10 N. J. L. 49; Stuckle vs. Keefe’s Ex’rs., 26 Pa. St. 397; Bates vs. Seely, 46 Pa. St. 248; Diver vs. Diver, 56 Pa. St. 106; McCurdy, et al. vs. Canning, 64 Pa. St. 39; Jackson vs. Stevens, 16 Johns. 110; Jackson vs. Cary, 16 Johns. 302; Shaw vs. Hearsay, 5 Mass. 521; Fox vs. Fletcher, 8 Mass. 274; Fox vs. Varnum, 12 Mass. 474; Draper vs. Jackson and wife, 16 Mass. 480; Brownson vs. Hull, 16 Vt. 309; Ketchem vs. Walsworth, 5 Wis. 95; Bennett vs. Child, 19 Wis. [362]; Hemingway, Adm’r. vs. Scales, 42 Miss. 1; Robinson vs. Eagle, 27 Ark. 202; In re Shaver, 31 U. C. Q. B. 605; Hulett vs. Inlow, 57 Ind. 412.
■ Counsel for the respondent does not seriously urge this statute as a ground for his contention, but bases his argument essentially upon what are called “the married women’s acts” in this State, the first of them having been passed March 17, 1865, 12 Del. Laws, ch. 572, about four years prior to the date of the deed to the vendor and his wife. He argues that these statutes “have abrogated the common law rule relative to estates in the entirety, because all the reasons which support the creation of the estate have ceased to exist, and there is now nothing in the policy of the law to prevent a wife from holding an estate in common with her husband, as she might do with any one else.” In support of this argument he has been able to produce decisions in his favor from four states, to wit: Maine, New Hampshire, Illinois and Iowa, the cases he cites being Clark vs. Clark, 56 N. H. 105, Cooper vs. Cooper, 76 Ill. 57; Hoffman vs. Steiger, 28 Ia. 302; Appeal of Robinson, 88 Me. 17. The last- case is the only one in which the reasoning is based upon some familiarity with the common law of real property, although the Court cites, and apparently relies upon the three other cases, supra, as authority to sustain the radical step taken in its decision.
[416]*416Opposed to these cases, is the overwhelming weight of American authority, amounting almost to unanimity.
In the case of Diver vs. Diver, 56 Pa. St., 106, 109, the opinion of the court was delivered by Judge Strong, after-wards a Justice of the Supreme Court of the United States, and generally recognized as pre-eminently versed in the common law. His reasoning seems so clear and conclusive that it is difficult to believe that any court to which this opinion should be read, could possibly discuss and decide the question as was done in the four cases I have cited supra from the states of Maine, New Hampshire, Illinois and Iowa. , This opinion is so brief and the point decided so absolutely identical with that raised in the pending cause, that I will quote it at length.
“But it is said the Act of 1848 (commonly called ‘The Married Women’s Act,’) by destroying the legal unity of the husband and wife, has converted such an estate into a tenancy in common; that is, that such a deed conveys a different estate from that which the same deed would have created, if made prior to the passage of the Act. To this we cannot assent. It mistakes alike the letter and the spirit of the statute imputing to it a purpose never intended. The design of the legislature was single. It was not to destroy the oneness of husband and wife, but to protect the wife’s property, by removrng it from under the dominion of the husband. To effectuate this object, she was enabled to own, use and enjoy her property, if hers before marriage, as fully after marriage as before. And the act declared that if her property accrued to her after marriage, it should be owned, used and enjoyed by her, as her own separate property, exempt from liability for the debts and engagements of her husband. All this had in view the enjoyment of that which is hers, not the force and effect of the instrument by which an estate may be granted to her. It has nothing to do with the nature of the estate. The act does not operate upon rights accruing to her until after they have accrued. It takes such rights of property as it finds them, and regulates the enjoyment, that is, the enjoyment of the estate after it has vested in the wife. And the mode of authorized enjoyment is significant. It is to be [417]*417as her separate property is enjoyed, as property settled to her separate use. The act therefore no more destroys her union with her husband than does a settlement of property for her separate use. To a certain extent she is enabled, but no more than is necessary, to protect her property after it has been acquired. We have held that she can coiivey her lands only by joining in. a deed with her husband. Pettit vs. Fretz, 9 Casey 118. This is a clear recognition of the existing unity of the two. It need not be repeated that no greater effect is to be given to'the Act of 1848 than its language and spirit demand. It is a remedial statute, and we construe it so as to suppress the mischief against which it was aimed, but not as altering the common law any further than is necessary to remove that mischief. To hold it as operating upon the deed conveying land to a wife, making such deed assure a different estate from what it would have assured without the act, is to lose sight of the legislative purpose. Were we to do so, it would become in many cases a means of divesting her of her property, instead of an instrument of protection. In the present case, if it has converted the estate granted to ■Diver and his wife into a tenancy in common, it has taken from her her ownership and enjoyment of the entirety during her husband’s life and her right of survivorship to the whole. On this subject the remarks of Chief Justice Lewis in Stuckley vs. Keefe’s Executors, 2 Casey 401, are worthy of attention.”
The following cases cited by complainant’s counsel hold to the same effect. Marburg vs. Cole, 49 Md. 402; Bates vs. Seely, 46 Pa. St. 248; McCurdy, et al. vs. Canning, 64 Pa. St. 39; Farmers etc. National Bank of Rochester vs. Gregory, 49 Barb. 155; Wright vs. Saddler, 20 N. Y. 320; Shaw vs. Hearsey, 5 Mass. 521; Fisher vs. Provin, 25 Mich. 347; Robinson vs. Eagle, 29 Ark. 202.
It would be altogether superfluous for me to prolong this opinion by additional argument or further citations, or to make any analysis of the opinion of the Courts in the four cases I have cited contra.
[418]*418Common law estates cannot be modified or destroyed in this State by such inferences from legislative action, as is made the basis of the argument in those four cases, that estates in entirety had been abolished.
The estate in entirety, and the mode in which it may be created is as clearly defined and well understood in our law, us in the case with estates in common or coparcenary, or the estate of a tenant by the courtesy or a tenant in dower. Legislation direct and unequivocal is as necessary to abolish the one as the other.
In view of the fact that this is the first time that this ■question has ever been raised in this State, I have though tit desirable that I should discuss it somewhat fully, especially in consideration of the industry and ability displayed by counsel for the respondent in the preparation of an argument in a case where authority is so overwhelmingly against him.
It appearing, therefore, that the complainant has an estate in severalty in fee simple in the land described in the bill, and no other objection having been made to the granting ■of the prayers of the bill, it follows that a decree must be entered directing the specific performance of his contract.