Alsop v. Fedarwisch

Mr. Justice Morris

delivered the opinion of the Court:

On behalf of the appellee, a motion has been filed to dismiss the appeal, on the ground that the appellant has not in any manner joined the other defendants in her appeal, and that she has not resorted to the mode of summons and severance. And with this motion has been combined a motion to affirm the decree appealed from, on the ground that the appeal is frivolous. But in view of the condition of the record with regard to the defendants other than the appellant, we deem it unnecessary to entertain the motion to dismiss the appeal; and the motion to affirm the decree becomes unnecessary in consequence of the views which we entertain on the merits of the case.

The appellant’s contention is that the deed to Joseph Frank and Kunigunda Frank, his wife created a tenancy in common, and not either a joint tenancy or a tenancy by the entirety. And the argument is that, in the case of Carroll v. Reidy, 5 App. D. C. 59, this court decided that tenancies by the entirety between husband and wife have been abolished in the District of Columbia by virtue of the Married Woman’s Act of April 10, 1869; that there are terms in the deed of conveyance antagonistic to the theory of joint ten *416 ancy, which it is claimed is not favored by the policy of our American law, and against which it is argued the courts should be astute to find reasons for its non-existence; and that therefore Frank and his wife necessarily took as tenants in common, in which event, upon the remarriage of the widow, one-half interest would have devolved upon the children as tenants in common.

But we did not decide, and we did not intend to decide, in the case of Carroll v. Reidy, that tenancies by the entirety as between husband and wife had been abolished in the District of Columbia by the Married Woman’s Act. What we decided in that case is, that, when a deed of conveyance purported in express terms to convey real estate to husband and wife as tenants in common, they were competent at common law so to take, notwithstanding the doubts of some writers and even some adjudications to the contrary based upon the supposed impossibility that husband and wife, in view of their fictitious unity in law as one person, could take as tenants in common; and further, that, even if at common law husband and wife were incompetent to take as tenants in common, they had become competent under the Married Woman’s Act, which had destroyed the fictitious unity of person upon which was based their supposed impossibility so to take. The effect of that act upon tenancies by the entirety it was unnecessary there, and it is unnecessary here, to determine. For whether the estate conveyed in the present case was an estate by the entirety or an estate in joint tenancy, is of no practical consequence here, inasmuch as the right of survivorship, incident alike to both of these classes of estates, would equally vest the whole estate in the appellee upon the death of her husband.

That joint tenancy exists in the District of Columbia, however much it may be disfavored, and however greatly it may often contravene the intentions of the parties to the instruments creating it, cannot now, of course, be reasonably questioned for a moment. It is for the legislative power *417 to abolish it, not for the courts. The doctrine that a conveyance by deed to two or more persons creates a joint tenancy, when it does not in exceptional cases create a tenancy by the entirety, unless apt words are used to show a contrary purpose and sufficient to create a tenancy in common, is too well established, not only as a rule of law, but likewise as a rule of property, to be seriously questioned at this late day. The argument for the appellant, however, we understand to be, not that joint tenancy does not exist in the District of Columbia, and is not the result of such a conveyance as we have indicated, but that, inasmuch as in our country courts will incline against it and will take advantage of any expressions that indicate a contrary purpose in the instrument of conveyance, the words in the deed before us for construction, to which we have already referred, should be deemed sufficient to justify the construction of this deed as creating a tenancy in common, rather than a joint tenancy or any other tenancy with the incident of survivorship.

We fail to be convinced by this argument, ingenious as it is. The terms of the deed both in the general granting clause and in the habendum clause are those that have been used from time immemorial for the creation of joint tenancies, and which have always and uniformly been construed to create estates in joint tenancy, or, as we have said, in the case of husband and wife, tenancy by the entirety. Excluding from consideration the independent covenants of the deed with regard to the road through the property, there is absolutely nothing whatever on which any inference could be based of an intention to create a tenancy in common. On the contrary, the very mention of the wife as a joint party of the second part, which otherwise would have been so unnecessary, and is in itself so unusual, is proof positive of an intention to give the estate incidental to the legal relation of husband and wife at the time, or *418 else the estate of joint tenancy, when there are no words to indicate a different purpose.

And this conclusion is in nowise modified by the independent covenants in the deed. Even if such independent covenants could be allowed to overcome the plain terms of the body of the deed, which reason, and the overwhelming current of authority will not permit, we find nothing in these covenants which, fairly construed, would give to the deed the effect claimed on behalf of the appellant. The use of the singular number for the plural, or of the plural for the singular, is not an uncommon clerical error in deeds; and such error, even when occurring in the body of deeds, has never been allowed to overcome the plain import and legal significance of the residue. Occurring, as the incongruity does here, in independent covenants, it would not be justifiable to allow it to affect the substantial portion of the deed whereby alone the estate, whatever it is, has been created.

The only terms in the deed that would seem at all to be entitled to serious consideration in this connection, are the words, “ share and share alike,” used in reference to the question of expense for keeping the road in répair. And these terms, even if they could otherwise be construed as sufficient to convert an estate in joint tenancy created by deed into an estate of tenancy in common, are plainly applicable to the sharing of the expense between the parties of the first part and the parties of the second part; and it would be a most strained and unnatural construction that would extend them to a qualification of the estate taken by the parties of the second part as between themselves.

We are clearly of opinion that the deed in question cannot be construed as creating a tenancy in common, and that the tenancy thereby created was either an estate by the entirety or a joint tenancy. As we have said, it is unnecessary here to decide between these two, as the incident of surviv *419 orship attaches to both; and whether it be the one estate or the other, the appellee, having survived her husband, is now entitled, by operation of law, to the whole estate.

We fail to see how this conclusion can well be affected by the will of Joseph Frank, even if he owned no other property than his interest in the land now in controversy, or by the administration of the appellee as executrix of that will. It may be that Joseph Frank made the mistake of supposing that he owned an interest in this land which he could devise, or even that he owned the whole of it. That mistake did not make him such an owner; nor does the fact that the appellee administered his personal property under the will, estop her from showing the error. Even if she supposed that she was actually taking this real estate under her husband, it is not apparent that her error should estop her when she came to know the truth. No one was 'misled by either error to his own detriment; and none of the conditions are presented upon which the doctrine of estoppel is applicable. And the same observation is applicable to the matter of the settlement made by the appellee with one of the children. That settlement did not bind her to any one else, and did not in the slightest degree affect the rights of any other person.

But these several circumstances, we understand, are insisted on, not so much by way of estoppel, as by way of showing what the intention and understanding were of Joseph Frank and Kunigunda Frank, when they took the deed of conveyance in their joint names. But the deed is unambiguous in its terms. It needs no extraneous circumstances to show its purpose and intent. There is nothing to show that the deed was executed under a misapprehension of its contents. If estates are to be overthrown and new estates substituted in their place after the lapse of so many years and after the death of some of the parties to the transaction, clear and unequivocal proof of the mistake, it seems to us, should *420 be required for the purpose. We fail to find such proof-or any sufficient proof to that effect in the circumstances narrated.

We are of opinion that the decree of the Supreme Court of the District of Columbia in the premises was correct, and that it should be affirmed, with costs, and it is so ordered.