Barber vs. Harris, 15 Wend. 615

By the Court, Nelson, Ch. J. The defendant having executed the mortgage, under which the plaintiff claimed to recover the possession of the premises, was estopped from denying that he had title to them, and from setting up title in third persons. The deeds, therefore, from Yates to Staats and from Staats to Mary Yates, should have been excluded. They were disregarded, however, by the judge, in the final disposition of the case. Whether the mortgage, as executed, was void and inoperative or not, was a question that could properly arise, and of which the defendant might avail himself.

If it was void, nothing passed under it to the plaintiff, who was bound to show an execution of the instrument that would bind the interest of the defendant in the premises, whatever it might be. The deed from Yates to the defendant and his wife and children, conveyed to them an estate which they held as tenants in common, the defendant and his wife together being the owners of one share, and that probably only for their lives. The husband and wife, in contemplation of law, are but one person, and they are therefore incapable of holding either as joint tenants or tenants in common. 2 Black. Comm. 182. 16 Johns.

R. 115. 8 Cowen, 277. 2 Black. R. 1214. Each is seized of the entirety, per tout et non per my; being but one person, there can be no moiety or separate estate between them; and the husband, therefore, cannot forfeit or alien the estate, because the whole of it belongs to the wife as well as to him. Cruise, tit. 18, Joint Tenancy, ch. 1. § 35. 5 T. R. 654. 2 Black. Comm. 183. If a grant is made to husband and wife and a third perspn, the husband and wife have one moiety and the third person the other; so if the grant be to the husband and wife and two others, the husband and wife take one third only.

Litt. § 291. 1 Inst. 853. 2 Vern. 120. We need not, however-, pursue this inquiry, nor express any definitive opinion upon the true construction of the deed to the defendant, his wife and children, because, during the life of the husband, he undoubtedly has the absolute control of the estate óf the wife, and can convey or mortgage it for that period. By marriage he acquires, during coverture, the usufruct of all her real estate which she has in fee simple, fee tail or for life.

If the wife survives, and is not preduded by her acknowledgment of the mortgage, she may then raise the question as to the nature and extent of the interest she took under this deed. The verdict and judgment in this case will not prejudice her rights. It is unnecessary, therefore, to express an opinion as to the sufficiency of the acknowledgment; though I do not intend, by thus waiving the question, to have it implied that I entertain any doubt upon it.

Neither is it material whether the verdict find for the plaintiff an estate in fee or for life, as to his share in the premises, because the interests of the co-tenants, or heirs, they not being parties to the suit, will be unaffected by it. It is perfectly plain from the terms of the deed, that the defendant and wife are tenants in common with their children, those born since its execution as well as those mentioned by name therein. The whole estate vested in the grantees living and named, but became divested as to the other shares afterwards arising or opened to let in the after-born children.

Fearne, 313, and cases there cited. 4 Johns. R. 64. 12 Wendell, 83. 3 T. R. 484. 2 Strange, 1172. 1 Ld. Raym. 310. The consequence is, that the defendant and his wife having but one share, and there being eight children, only one-ninth of the premises are bound by the mortgage, and of course no more passed to the plaintiff under it. According to the stipulation, the verdict should be amended so as to find for the plaintiff one-ninth of the premises described in the declaration, and for that he is entitled to judgment.