#### Sophie Cloos, App’lt, *v.*Bernard Cloos, Resp’t.

*(Supreme Court, General Term, Second Department,*

*Filed February 10, 1890.)*

1. PABTITIOH—H USB AMD AMD "WIFE.

Where husband and wife hold lands as joint tenants or tenants in common an action for partition will lie at the suit of either against the other.

2. Same—Deed.

A deed of premises to husband and wife will create a joint tenancy or * tenancy in common where apt words are used in the conveyance.

Appeal from judgment in favor of defendant

Action for partition of real estate. The parties are husband and wife, and they hold the title under deeds made to them, the *habendum*clauses of which are express that they should hold as joint tenants and not as tenants in common.

The answer denied that they hold the premises as joint tenants, and alleged that they hold as tenants by the entirety and that the same is not divisible except on an amicable partition by deed.

*Coudert Bros. {James Bicharás,*of counsel), for *app’lt; Moffett & Kramer,*for resp’t

Pratt, J.

The common law rule that where lands are conveyed to husband and wife jointly they hold as tenants by the entirety, still prevails in this state and has not been abrogated by the various acts of the legislature with respect to married women. *Bertles*v. *Nunan,*92 N. Y., 152; *Zorntlein*v. *Bram,*100 id., 12.

That husband and wife may hold lands as joint tenants, or as tenants in common, would seem to be recognized by chap. 472, Laws 1880. When they so hold, an action in partition will lie at' the suit of either against the other. *Moore*v. *Moore,*47 N. Y., 467.

The only question in this case is whether the two deeds, which conveyed the premises in question, created a joint tenancy by the entirety as to those lands.

The deed of August 1,1884, is.between Mary Driscoll, as grantor, and Bernard Oloos and Sophie Cloos as grantees, “ as joint tenants and not as tenants in common.” It conveys to them, “their heirs and assigns forever.”

The deed of April 23,1887, is between John Farley, as grantor, and Bernard Oloos and Sophie Cloos, as grantees, “ as joint tenants,” and conveys to them, “their heirs and assigns forever.” In this deed the *habendum*clause is to the grantees, “ their heirs *201and assigns forever, as joint tenants and not as tenants in common.” It seems very clearly to have been the intention of the parties to create a joint tenancy. We think such a tenancy was created unless it is impossible for husband and wife to take other than by the entirety where they take under one deed. We do not understand that such a- disability exists where apt words are used in the conveyance. *Hicks*v. Cochran, 4 Ed. Ch., 107; *McDermott*v. French, 15 N. J. Eq., 78.

To the same effect are Washburn on Real Property, vol. 1, chap. 13, § 4; 4 Kent’s Com., 363, and Preston on Estates, 132.

In *Bertles*v. *Nunan,*the conveyance was to husband and wife, their heirs and assigns, without designating any particular as to each. It simply gave them the fee, and the court of appeals held that they took as tenants by the entirety, under the common law. It does not seem to us that the court intended to decide, or in fact did decide, in that case that husband and wife could not take by deed either as joint tenants or as tenants in common, where proper words were used.

We are, therefore, of opinion that the court at special term erred in dismissing the complaint

The judgment appealed from should be reversed and a new trial be ordered, with costs to abide the event

Barnard, P. J., concurs.