Schulz v. Ziegler

The opinion of the court was delivered by Parker, J.

We concur in the result reached bjr the court below and for the most part, upon the grounds expressed in the foregoing memorandum of Vice-Chancellor (now Chancellor) Walker.

In Buttlar v. Rosenblath, 42 N. J. Eq. (15 Stew.) 651, it was decided that- by virtue of the Married Woman’s act the .estate by entireties was affected in such a way as to endow the wife with the capacity, during the joint lives, to hold in her possession as a single female one-half the estate in common with her husband, the right of survivorship still existing as at common law. The same ease holds that the act did not turn the estate by entireties into a tenancy in common'; but this must be read in view of the decision below (7 N. J. L. J. 143), which was that it was a general tenancy in common, i. e., in fee; such an estate, in other words, as would have vested under the statute by a deed to two persons not husband and wife, without words of joint tenancy. Comp. Stat. p. 1538 § 15. The essential point guarded by our decision was the preservation of the right of survivorship as at common law. Whatever the estate during the joint lives may be called, it is in effect a tenancy in common between husband and wife, or between the husband’s grantee and the wife, during the joint lives, with remainder to the survivor. The essential feature of a tenancy in common is the unity of possession, as distinct from unity of title, interest, or time of creation. 2 Bl. Com. 191. Such a tenancy is partible by the express language of the statute. Were this not so, the creditors who in Buttlar v. Rosenblcuth enforced their claims against the husband’s interest would be compelled to sit idly by and wait to see which would die first, the husband or the wife, or else enter during his lifetime into joint occupancy of the premises with her.

We hold, therefore, that by virtue of an estate by entireties, as modified by the Married Woman’s act, the seisin of husband and wife during the joint lives is essentially a tenane3r in coni *202 mon, terminated on tile death of either, with remainder in fee to the survivor; and that the right of the husband may be transferred by him to a third party who thereby becomes tenant in common for the joint lives in the husband’s place; and that partition may be had between such purchaser and tire wife of this tenancy in common, but without affecting in any way the common law right of survivorship.

It is suggested that the bill should have been struck out because the prayer is too broad in asking for the absolute sale of the premises instead of limiting such sale to the right of possession during the-joint'lives. But a motion to strike out a bill under the rule now numbered 213, which for present purposes is identical with rule 224 prefixed to 41 N. J. Eq. (14 Stew.) reports, is in the nature of a demurrer; Stevenson v. Morgan, 63 N. J. Eq. (18 Dick.) 707; Hanneman v. Richter, Id. 753; Holton v. Holton, 72 N. J. Eq. (2 Buch.) 312; and a demurrer will not lie -to the whole bill when the prayer is too broad, but only to the part of the relief to which complainant is not entitled. Whitbeck v. Edgar, 2 Barb. Ch. 106 .

The order appealed from will be affirmed.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Yoorhees, Minturn, Kalisci-i, Bogert, Vredenburgh, Yroom, Congdon, White, Treacy— 15.

For reversal—Rone.