This is, in substance, an action by the plaintiff to recover the possession of certain real estate, and to have the nature *797and extent of his interest therein declared. A defense is interposed both in a legal and equitable aspect. The plaintiffs rights depend upon the extent of the power of the mortgagor to convey or transfer his interest in the property. By the case of Bertles v. Nunan, 92 N. Y. 152, it is settled that under a deed like the one here to the defendants the husband and wife take as tenants by the entirety, and that upon the death of either the survivor takes the whole estate. _ This is by virtue of the rule at common law; and it was conceded in the Bertles’ Case that under that law the husband had the control and use of the property during the joint lives. That was one of the characteristics of the estate, and it necessarily continues to be such, unless it has been eliminated by the “married women’s acts,” so called. The defendants place reliance upon chapter 200 of the Laws of 1848, and chapter 90 of the Laws of 1860. The trouble with the defendants’ argument on this line is that the court of appeals in the Bertles Case held that those acts do not affect the existence of' the estate by the entirety, apd, if they do not affect the estate itself, they do not affect the incidents or characteristics, unless there is some special provision that may apply to the latter, and not to the former. There is no such special provision. In Goelet v. Gori, 31 Barb. 314, it was held that the act of 1848, as amended in 1849, did not affect the right of the husband under such an estate to the entire use, and a similar doctrine was held in Bank v. Gregory, 49 Barb. 155, having reference to the act of 1860 as well as to the acts of 1848, 1849. In that case it is said by Judge Johnson:
“Neither can sell without the consent of the other, and the survivor takes the whole. But during the life of both the husband is entitled to possession of the entire estate, and to the rents and profits, and may even alien the. wife’s interest during their joint lives; and the estate will, it seems, be in such alienee, subject to the right of the wife or her heirs to enter and enjoy the same, at the death of the husband, freed and discharged from all his debts and engagements.”
In Barber v. Harris, 15 Wend. 615, it is said of such an estate by Nelson, C. J., that “during the life of the husband he undoubtedly has the absolute control of the estate of the wife, and can convey or mortgage it for that period.” This right to mortgage is recognized in Snyder v. Sponable, 1 Hill, 569. In Beach v. Hollister, 3 Hun, 519, it was held that the husband had the absolute control of the estate of his wife during his life, and might mortgage, lease, and convey his interest, and that it was subject to sale on execution. In Coleman v. Bresnaham, 54 Hun, 621, 8 N. Y. Supp. 158, a like rule was held. In Demby v. City of Kingston, 60 Hun, 294, 14 N. Y. Supp. 601, it seems to have been necessarily held that the husband was entitled to the use during the life of both parties. This case was affirmed in the court of appeals without opinion. 133 N. Y. 538, 30 N. E. Rep. 1148. The case of O’Connor v. McMahon, 54 Hun, 66, 7 N. Y. Supp. 225, is pressed upon our attention by the defendants’ counsel. There it was held that where a conveyance is made to a husband and wife as grantees, and they subsequently separate, the husband voluntarily leaving the wife in the possession and control of the premises, the wife is entitled to the possession as against a subsequent grantee *798of the husband alone. Force was given to the circumstance that the husband had voluntarily yielded to the wife the possession and control, and it was said that the husband could then do no act which would deprive her of the enjoyment of such possession. In the same court, however, in a subsequent case, (Grosser v. City of Rochester, 60 Hun, 380, 15 N. Y. Supp. 62,), it was said with apparent unanimity that under the doctrine of Bertles v. Hunan the husband, during the joint lives of the husband and wife, “has the right to the exclusive benefit, use, possession, and control of the land, and may take all the profits thereof, and may mortgage or convey an estate to continue during the joint lives; but he may not make any disposition of the land that would prejudice the right of the. wife in case she should survive him.” In Gifford v. Rising, 55 Hun, 61, 8 N. Y. Supp. 279, where a creditors’ bill was brought to reach the interest of the judgment debtor in an annuity created by the will of his father, charged upon real estate, and payable semiannually to the judgment debtor •and his wife for their support and that of their family during their lives, it was held that during the joint lives of the annuitants the husband was entitled to the entire annuity, and the whole was liable for his debts. In Ward v. Ward, 14 Ch. Div. 506, it was held that in •such a case the wife had no equity to a settlement. See 2 Kent, Comm. 141, marginal paging.
In the light of the foregoing .authorities it must, I think, be held that the mortgage in question was operative, at least so far as to convey an estate during the joint lives of the husband and wife. The further question is what operation it had upon the fee. In Beach v. Hollister, above referred to, it is said that a purchaser upon execu- ■ tian sale against the husband becomes, in case the husband survives the wife, the absolute owner of the whole estate. This proposition is supported by the case of Ames v. Norman, 4 Sneed, 683, and would apply with equal for¿e to the case of a purchaser upon foreclosure of a mortgage that in form conveyed all the interest of the mortgagor. So in 1 Washb. Real Prop. (5th Ed.) p. 707, c. 13, § 6, subd. 3, it is laid down that, “if the husband convey the entire estate during -coverture, and dies, Ms conveyance will not have affected her [the wife’s] right of survivorship to the entire estate. But if, in such a-case, the husband survive, his conveyance becomes as effective to pass the whole estate as it would have been had the husband been sole seised when he conveyed.” A similar view is taken in Freem. Coten. §§ 73, 74. In Bram v. Bram, 34 Hun, 487, the idea seems to be recognized that a conveyance from the wife alone would, in case she survived her husband, operate to convey the title. In some cases it is said that neither can alien any part of the estate without the consent of the other. Of such an expression the meaning is, according to Judge Cowen in Jackson v. McConnell, 19 Wend. 180, that neither can alien the entire estate. Our attention is called to an expression in the opinion in Zorntlein v. Bram, 100 N. Y. 12, 2 N. E. Rep. 388, that the deed of the wife alone conveyed no title. This is to be taken in connection with the issue in that case, which was simply whether the grantee from the wife alone of an undivided half could maintain partition. The deed to the husband and wife was in *7991878, and was therefore not affected by chapter 472 of Laws of 1880, though the deed to plaintiff from the wife was in 1881. The court held that the case was controlled by the Bertles’ Case, and that plaintiff could not maintain partition. For that purpose, at that time, no title was conveyed. There was no occasion to decide whether the deed of Mrs. Bram would, in case she survived her husband, operate to pass the estate, and it is not to be assumed that there was any design to pass upon the question whether in any event the separate deed of the wife or of the husband would become or be operative upon the title. Under the Code (section 1532) tenants by the entirety are not given the right to have partition. In the old cases the limit of the power of alienation by the husband is that he cannot alien so as to cut off the right of survivorship of the wife. In Back v. Andrew, 2 Vern. 120, decided in 1690, it is said “the husband cannot alien nor dispose of it, so as to bind the wife.” The question was whether a mortgage given by. the husband barred the surviving wife after his death. In Doe v. Parratt, 5 Term. R. 652, decided in 1794, the question was whether the deed of the husband alone barred the wife, she surviving her husband, and Kenyon, C. J., said: “It has been settled for ages that when the devise is to the husband and wife they ¿take by entireties, and not by moieties, and the husband alone cannot by his own conveyance, without joining his wife, divest the estate of the wife.” So, in 1 Bright, Husb. & Wife, 25, it is laid down that “one peculiarity of this tenancy is that the husband cannot alone convey the property so as to affect the interest of the wife surviving, who will be entitled to the whole.” See, also, 2 Kent, Comm. 133; 1 Washb. Real Prop. p. 707, subd. 3a.
By our statute (4 Rev. St. [8th Ed.] p. 2434, § 35) expectant estates are alienable in the same manner as estates in possession, and by the term “expectant estates,” as said in Lawrence v. Bayard, 7 Paige, 76, the legislature intended to include every present right or interest, either vested or contingent, which may by possibility vest in possession at a future day. The husband in this case had, in substance, a contingent remainder, and I see no good reason why he had not power to execute a deed which would operate to convey all his interest, and so operate to carry the fee in case he survived the wife. This conclusion is, I think, authorized by the weight of authority, although in some states a different conclusion is reached, based to some extent on statutory provisions. Chandler v. Cheney, 37 Ind. 391; Corinth v. Emery, 63 Vt. 505, 22 Atl. Rep. 618. But it is urged by the defendants that the fact that the wife paid the entire purchase price places her in a better position. As to this it is to be observed that she consented to the form of the deed as taken. It must therefore be assumed that she was content to have such rights as the law awarded to her in that kind of ownership. It was so held in Ward v. Krumm, 54 How. Pr. 95. In Persons v. Seargent, 132 N. Y. 590, 30 N. E. Rep. 868, it had been held at special term, in case of deed to husband and wife, that the fact that each paid one half the purchase price, and that from the time of the purchase to the death of the husband they divided the proceeds of the property equally between them*800selves, did not prevent the wife from taking the whole as survivor. The decision at special term was affirmed at general term and in. the court of appeals. The mortgage was for $1,550. Of this $1,400 was to secure a note given the year previous, and signed by the wife as well as the husband. One thousand dollars of the $1,400 was applied by the husband in part payment for 35 acres of land, the title of which was taken in his own name.. Afterwards, and in September, 1890, the husband conveyed to the wife both parcels of land. The consideration of this transfer, except perhaps by inference, does not appear, nor does the value of the 35 acres appear. Whether either party had any other property does not appear. I think the wife has not made out a case for equitable protection against the mortgage. It follows that the plaintiff is entitled to judgment awarding him possession of the property, and declaring that his estate in the property is the right to the use during the joint lives of the defendants, and that he is entitled to the fee in case the husband survives the wife, and that the wife has no equity superior to plaintiff’s rights under the mortgage.
MARTIN, J., concurs.
HARDIN, P. J.I am disposed to agree to the doctrine of the foregoing opinion, though the opinion in Re Albrecht’s Estate, (N. Y. App.) 32 N. E. Rep. 632, gives rise to some hesitation. That opinion-says:
“What would be the legal rights of the parties where, upon a purchase of real property, the husband and wife had each contributed from their separate estates equally or in any other ascertained proportion to the payment of-the consideration, does not, as yet, seem to have been the subject of judicial decision.”
Judgment ordered for the plaintiff as stated in the opinion, with costs.