The plaintiff claims to recover in this action for the occupation of land, and for the removal and conversion of the fences thereon, and damages to the tenement when the premises were held by a title in herself and husband. In Farmers & Mech. Nat. Bank of Rochester v. Gregory, 49 Barb. 155, it was held, that the recent statutes for the better protection of the separate property of married women have no relation to, or effect upon, real estate conveyed to husband and wife jointly; that the wife has no separate estate in such case, but is seized, with her husband, of the entirety; neither having any separate or severable part or portion, but the two as one in law holding the entire estate; and that they hold not as joint tenants, or as tenants in common, but as tenants by entireties. See, also, Goelet v. Gori, 31 Barb. 314; Torrey v. Torrey, 14 N. Y. 430; 2 Kent’s Com. 133. Applying these principles to the case at bar, the question now raised must be con*576sidered as res adjudicaba, and the judgment of the referee was clearly right.
There is nothing in the decision of the general term or the court of appeals in Freeman v. Freeman, or in the remittitur of the court of appeals, in conflict with the doctrine laid down, nor does the order of the special term or the remittitur from the court of appeals, which directs that Samuel Freeman’s heirs execute and deliver a deed to the plaintiff sufficient in law to pass title for her sole and separate use and benefit during her natural life, affect the question or confer a title upon the plaintiff which she was authorized to receive beyond the decision of the case. It was at most the decision of a motion, which cannot be regarded as res adjudicaba, where the husband was not represented.
It may be added, that no question of that kind could have been properly adjudicated upon such a motion so as to bind the parties, as all the court could do would be to carry out the decision of the court of appeals, which covered no such question, and which was not in dispute. The question in that case was, whether the husband and wife were entitled to the possession and to a deed, and no adjudication has determined that the wife, and not the husband, is entitled to the possession during the life of both, or that the wife exclusively was entitled to recover damages.
The referee was right and the judgment entered upon his report must be affirmed, with costs.
Judgmenb affirmed.