their automatic bells, ringing at all times of the day and night, and yet none of the complainants would think of removing the railroad from their neighborhood because of the distressing noises which arise therefrom. 3. Complainants are not entitled to a decree which would interfere with defendant's busi

that neighborhood depreciates the value of their property. As to such injury, if any, complainants have an adequate remedy at law. Wood, Nuis. 946; Atty-Gen. v. Nichol, 16 Ves. Jr. 342; Zabriskie v. Jersey City & B. R. Co. 13 N. J. Eq. 314; 2 Story, Eq. Jur. § 925.

slaughtering or confining swine, if it shall with their shrieking whistles, louder than the appear that the further use of said buildings squealing of a thousand hogs, in chorus, and and inclosure by said defendant be offensive or noxious to the complainants, or any of them, because of the noises arising from the swine, or because of disagreeable odors arising from the inclosure caused by confining swine therein. From this decree, complainants and defendant have both appealed. On the part of the complainants, it is in-ness on the ground that the existence of it in sisted that the decree falls short of giving them the relief to which they are entitled, because, having adjudged the defendant's business to be a nuisance, such judgment was not followed by an injunction perpetu ally restraining defendant from further carrying on such business. On the part of the defendant, it is claimed that the complain- 4. We are satisfied that defendant has not. ants were not entitled to any relief under at all times, conducted his business with as their bill and the proofs made, for the rea- much care to cleanliness as he ought. His sons: First. That it does not appear from counsel urged that the testimony fails to lothe bill that the defendant is maintaining cate any offense arising from the slaughtersuch a business as is a nuisance per se; that house proper. If this be granted, we fail to it does not appear from the bill but that the see the force of it. Complainants are not reoffensive odors arise from causes which can quired to nicely discriminate as to the origin be remedied without any serious interference of offensive smells. The evidence is conwith the conduct of defendant's business: vincing that they come from defendant's that there is no allegation in the bill, and place of business, and his business must be substantially no proof, that defendant's regarded as including all that is incident to slaughter-house is of itself a nuisance. Sec-it. The defendant insists that this business ond. It is claimed that the decree gave no can be carried on so as not to be injurious to relief to complainants, and that, upon facts the health, or seriously offensive to complainfound by the circuit judge, the bill ought ants. The decree of the circuit court recogto have been dismissed. Without attempt-nized this possibility, and undertook to give ing to review the voluminous testimony in defendant time and opportunity to abate the this record, we have arrived at the following conclusions:

nuisance complained of without requiring him to stop his business altogether. The 1. That defendant's business is not of trouble with the decree is that it fails to such a character as. when properly con- point out specifically what defendant is reducted, to constitute a nuisance in the neigh- quired to do in order to comply with its reborhood where it is situated. This is prac- quirements. To adjudge that defendant tically conceded by complainants; and, if it should so conduct his business as not to be were not, we should not be willing to hold, offensive is to give him no rule of conduct as a matter of law, that a business so neces- which the law had not before prescribed. sary and important as that in which defend- The decree should have specifically pointed ant is engaged, and which his own profit and out the things that defendant was required the convenience of the city requires should to do, and to refrain from doing, in order to be conducted within reasonable distance of abate the nuisance which the court found to the market which he supplies, was of neces-exist. sity a nuisance, independent of the manner 5. Defendant's business, established under in which it was conducted.

the circumstances of this case, and conduct2. The noise made by hogs kept in confine ed by him on his own premises, will not be ment for the purpose of slaughter, being to enjoined because it cannot be carried on withsome extent unavoidable, does not constitute out some degree of offense and annoyance to such a nuisance as would justify a court of those living near it. It is only when it equity in destroying defendant's business for reaches the point of discomfort where it bethe sole purpose of ridding a neighborhood comes injurious to health that the injury of such noise. We do not intend by this to can be said to be irreparable so as to call forth intimate that we regard the squealing of the extraordinary power of a court of chanpigs as a soothing sound. We have no cery to destroy it. So careful is the law of doubt that such noises are more or less annoy-human life and health that no consideration ing to some people, depending somewhat of mere property rights can be allowed to upon their peculiar temperament. Some of weigh against them. As to other wrongs, complainants' witnesses testified that they they can, for the most part, be compensated did not notice the squealing of the pigs, in damages. In the recent case of People v. which annoyed other members of the family; Detroit White Lead Works, 9 L. R. A. 722, but in this age of steam and iron, the squeal- 82 Mich. 471, the rule in a case at law was ing of a pig is scarcely to be heard amid the stated by Mr. Justice Grant as follows: "The multitude of greater noises that everywhere defendants cannot be protected in the enjoy assault the ear. Within a short distance of ment of their property, and the carrying on defendant's place, and nearer to some of com- of their business, if it becomes a nuisance to plainants than the slaughter-house, are the people living upon the adjoining properties, railroad tracks, over which run the engines and to those doing legitimate business with

them. Whenever such a business becomes though the court declined to grant the ina nuisance, it must give way to the rights junction on the ground that it did not clearof the public, and either devise some means ly appear that the works, "when completed, to avoid the nuisance or must remove or cease would be a nuisance, "the foregoing rule its business. It may not be continued to the was clearly stated as one that would govern injury of the health of those living in its the court in dealing with the company should vicinity. This rule is founded both upon complaint afterwards be made. The facts in reason and authority. Nor is it of any con- that case were that defendants proposed to sequence that the business is a useful one, erect their gas-works in a populous residence or necessary, or that it contributes to the portion of the City of Newark, and such a wealth and prosperity of the community. case is to be distinguished from this, where Wood, Nuisances, 19; Reg. v. Train, 2 defendant erected his place of business at Best & S. 640; Works v. Junction Railroad, 5 the outskirts of the city, and in a locality McLean, 425; Respublica v. Caldwell, 1 U. S. 1 where similar kinds of business were already Dall. 150, 1 L. ed. 77; Ross v. Butler, 19 N. established. Most of the complainants had J. Eq. 296; Robinson v. Baugh, 31 Mich. 290. moved into this neighborhood since the It is true that, in places of population and defendant's business was established; and, business, not everything that causes discom- although they have a right to be protected fort, inconvenience, and annoyance, or which from nuisances that endanger the health of perhaps may lessen the value of surrounding themselves or their families, a court of property, will be condemned and abated as equity, in determining whether it will dea nuisance. It is often difficult to determine stroy defendant's business at their request, the boundary line in many such cases. The will consider whether the thing complained carrying on of many legitimate businesses of is noxious or only disagreeable, and in is often productive of more or less annoyance, the same connection will consider the fact discomfort, and inconvenience, and may in- that complainants have voluntarily put jure surrounding property for certain pur- themselves into the disagreeable neighborposes, and still constitute no invasion of the hood. The rule here contended for is recogrights of the people living in the vicinity. nized by our Statute concerning the abateSuch a case was Gilbert v. Showerman, 23 ment of nuisances. How. Stat. § 1643. Mich. 448. Under the general prayer for relief, comIn Cleveland v. Citizens Gas Light Co., plainants are entitled to a decree requiring 20 N. J. Eq. 205, the rule was stated defendant to remove from his premises every more broadly: Any business, however day all manure, blood, offal, hair, and other lawful, which causes annoyances, which refuse of his establishment in covered garbmaterially interfere with ordinary comfort age wagons, such as are in use by the board physically of human existence, is a nuisance of public works in the City of Detroit, or that should be restrained; and smoke, noise, in other wagons that will effectively avoid and bad odors, even when not injurious to the spread of offensive odors; to thoroughly health, may render a dwelling so uncomfort-clean, cleanse, and disinfect his premises able as to drive from it anyone not compel- daily; to provide sufficient pens for the hogs led by poverty to remain. Unpleasant odors, in store so that they shall not be crowded from the very constitution of our nature, ren- and rendered noisy and quarrelsome by disder us uncomfortable, and when continued comfort while in confinement; and to use or repeated make life uncomfortable. such other precautions as are necessary to The only question is, What amounts to that render his place of business clean and wholediscomfort from which the law will protect? some. The discomforts must be physical, not such as depend upon taste or imagination." This language was used in a case where the court was asked to restrain the defendants from erecting or carrying on their gas-works at the place at which they had begun to erect them or in the neighborhood of that place, and al

66

No costs will be awarded to either party in this court.

The decree below as to costs is affirmed. Morse and Grant, JJ., did not sit. The other Justices concurred.

Petition for rehearing overruled.

(October 6, 1891.)

ROSS APPEALS by plaintiff and defend

A tenancy by the entirety is severed by Chin Schreck from an order of the General

an absolute divorce between the ten

NOTI. The rule as to estates by entirety, stated. The ule in regard to estates by entirety is, that neither tenant can sever the union of interest without the consent of the other, but this is construed to mean that the one cannot sever the interest or

make any disposition of the estate so as to affect the right of survivorship. In the case of Washburn v. Burns, 34 N. J. L. 18, the court, in speaking of the husband's rights in an estate by entirety, says: "The limit of this right of the husband is, that he

cannot do any act to the prejudice of the ulterior | is, that neither can dispose of any part without the rights of the wife." 1 Bishop, Married Women, assent of the other, but the whole must remain to $622: Ames v. Norman, 4 Sneed, 683. the survivor. 2 Bl. Com. 182; Anderson, Law Dict. title, Entirety.

It is the prevailing doctrine that a severance of the marital relation by divorce also severs the estate, and after divorce they no longer hold by en-conveyed to them as such, they held, not as joint

of the premises under the deed by right of See 2 Kent, Com. 7th ed. 110; 6 Am. & Eng. survivorship notwithstanding the severance Encyclop. Law, 894; Cord, Legal & Equitable of the marital relations by the judgment of Rights of Married Women, 110a, Wms. divorce. The court at the trial sustained Real Prop. p. 208; Challis, Real Prop. p. 304; the plaintiff's right to be endowed of an Jackson v. McConnell, 19 Wend. 175; Doe v. equal undivided half part of the land, on Howland, 8 Cow. 277; Dickinson v. Codwise, the ground that after judgment in the action 1 Sandf. Ch. 222, 7 L. ed. 308; Fairchild v. for divorce the parties to such action became Chastelleaux, 1 Pa. 176; Stuckey v. Keefe, 26 tenants in common. Pa. 397; Washburn v. Burns, 34 N. J. L. 18; Lux v. Hoff, 47 Ill. 425; Ross v. Garrison, 1 Dana, 35; Bevins v. Cline, 31 Ind. 37; Doe v. Wilson, 4 Barn. & Ald. 303; Maynard v. Maynard, 36 Hun, 229; Bertles v. Nunan, 92 Ñ. Y. 152; Etna Ins. Co. v. Resh, 40 Mich. 241: Chandler v. Cheney, 37 Ind. 398; Barnes v. Loyd, 37 Ind. 524; Gibson v. Zimmerman, 12 Mo. 386; Bram v. Bram, 34 Hun, 489; Dean v. Metropolitan Elev. R. Co. 119 N. Y. 546. A divorce is a creature of the statute and its effect must be determined by the provisions of the law under whose authority it is granted. All existing rights already vested remain and are not thereby ended or taken away except such as are expressly taken away or affected by statute. There is nothing in the statutes which deprives a woman of a vested right acquired by her during her coverture, even though her husband obtained a divorce from her for her adultery.

Mr. George H. Kracht, for plaintiff: The deed to William Stelz, and Minnie, his wife, created an estate by the entirety, and the consideration for the interest the said wife received in said estate from her said husband was her vow of fidelity, and she, as the wife of William Stelz, took the same upon condition implied in law that she would remain faithful to all the solemn obligations of the marriage relation; and upon breach of this implied condition, and a judgment dissolving the marriage in consequence of said breach, she forfeited her interest in said estate.

Absolute divorce from the bonds of matrimony has the same operation and effect as the death of the guilty party.

Browning v. Headly, 2 Rob. Va. 340; Schouler, Husb. & W. §558; Highley v. Allen, 3 Mo. App. 524; Wood v. Simmons, 20 Mo. 363; Renwick v. Renwick, 10 Paige, 423, 4 L. ed. 1037; Levins v. Sleator, 2 G. Greene, 609; Barber v. Root, 10 Mass. 260; 3 Bl. Com. 183; Fitzherbert, Natura Brevium, 446-470; Co. Litt. 351; Wigney v. Wigney, L. R. 7 Prob.

Div. 177.

The rules laid down in Ames v. Norman, 4 Sneed, 696; Lash v. Lash, 58 Ind. 528, and Harrer v. Wallner, 80 Ill. 197, are wrong in principle, contrary to reason and natural justice, and against public policy. Barclay v. Waring, 58 Ga. 86.

The guilty wife should not be rewarded for bringing about an absolute divorce for her adultery by having half of her former husband's property bestowed upon her, to enjoy the same in common with her paramour, her subsequent husband.

Riggs v. Palmer, 5 L. R. A. 340, 115 N. Y. 511. See Wigney v. Wigney, L. R. 7 Prob. Div. 228; Piper v. Hoard, 9 Cent. Rep. 445, 107 N. Y. 82; Holman v. Johnson, Cowp. 343. The defendant, Minnie Schreck, is estopped by her own wrongful conduct from claiming title to the premises in question or any part thereof.

Bigelow, Estoppel, 370; Herman, Estoppel, $$ 731, 733, 740, 791; 2 Story, Eq. Jur. SS 1533, 1544.

Mr. Edward W. Scudder Johnston, with Mr. Lewis S. Goebel, for defendant:

The deed to William Stelz and Minnie Stelz created a vested estate in the said Minnie Stelz to hold the whole of said estate jointly with the said William Stelz during the lives of both of them, and a vested right to take the whole of the said estate free from the interest of the other, upon surviving the said William Stelz, and these vested rights could not be devested by a subsequent decree of divorce whose effect was merely to sever the marital relation, and which, by its terms, went no further than that

purpose.

The seisin of the entirety by each and the right of survivorship cannot be devested by subsequent statute, as these rights are conveyed by virtue of the grant and not by mere acquisition, nor will the decree of divorce disturb vested rights or gifts.

Bishop, Mar. & Div. § 670, p. 546; Erkenbrach v. Erkenbrach, 96 N. Y. 456; Pray v. Stebbins, New Eng. Rep. 521, 141 Mass. 221; Wait v. Wait, 4 N. Y. 100; Re Ensign, 4 Cent. Rep. 376, 103 N. Y. 284; Chase v. Chase, 55 Me. 21; Wells v. Wells, 10 N. Y. S. R. 252.

An executed gift to a wife would not be set aside and revert back to the husband, where the wife was subsequently divorced from him for her cause, by the mere fact of the subsequent divorce.

Sanford v. Sanford, 45 N. Y. 723; Borst v. Spelman, 4 N. Y. 288; Draper v. Jackson, 16 Mass. 480; Ward v. Krumm, 54 How. Pr. 95; Platt v. Grubb, 41 Hun, 447.

The parties were, after the divorce, tenants in common of the land for their joint lives, with the remainder to the survivor.

1 Bishop, Married Women, § 621; Gillespie v. Worford, 2 Coldw. 632; Allen v. McCullough, 2 Heisk. 189; 1 Washb. Real Prop. 5th ed. p. 708: Lewis's App. 85 Mich. 340; Thornton v. Thornton, 3 Rand. (Va.) 182; Jacobs v. Miller, 50 Mich. 120.

Mr. S. Jones, with Mr A. S. Hammersley, Jr., guardian ad litem of respondents, H. and C. Koebler:

The original estate of said Minnie as a tenant by the entirety with her husband was reduced by the judgment of divorce to an estate of tenancy in common with him.

2 Bishop, Mar. & Div. § 716; Ames v. Norman, 4 Sneed, 683; Lash v. Lash, 58 Ind. 526; Harrer v. Wallner, 80 Ill. 197; Re Benson, 16 Nat. Bankr. Reg. 377; Baggs v. Baggs, 55 Ga. 590; Freeman, Co-tenancy in Partition, $ 76; Bright, Husb. & W. p. 365; Brownson v. Hull, 16 Vt. 309.

Peckham, J., delivered the opinion of plausible view to say that, as the estate is the court: built upon the unity of husband and wife, We agree in this case with the views ex-it never would exist in the first place but for pressed by the learned judges who delivered such unity, anything that terminates the the opinions at the special and general terms | legal fiction of the unity of two separate perof the supreme court. The sole question sons ought to have an effect upon the estate arises out of the decree of divorce which whose creation depended upon such unity. the husband obtained from his first wife on account of her adultery.

Such a tenancy differs from all others. In one respect it is like a joint tenancy, in that there is a right of survivorship attached to both, but it is not a joint tenancy in substance or form. Barber v. Harris, 15 Wend. 615; Jackson v. McConnell, 19 Wend. 175; Berties v. Nunan, supra.

It would seem as if the continued existence of the estate would naturally depend upon Did that divorce have any, and if so what, the continued legal unity of the two persons effect upon the character of the holding of to whom the conveyance was actually made. the real property by the former husband and The survivor takes the whole in case of wife? By the conveyance the husband and death, because that event has terminated the wife took an estate as tenants by the entirety. | marriage and the consequent unity of person. Bertles v. Nunan, 92 N. Y. 152; Zorntlein v. An absolute divorce terminates the marriage Bram, 100 N. Y. 13, 1 Cent. Rep. 66. and unity of person just as completely as does death itself, only instead of one, as in case of death, there are, in the case of divorce, two survivors of the marriage, and there are, from the time of such divorce, two living persons in whom the title still remains. It seems to me the logical and natural outcome from such a state of facts is that the tenancy by the entirety is severed, and a severance having taken place each takes his or her proportionate share of the property as a tenant in common, without survivorship. It is said that in such case it ought to be a joint tenancy, but I see no reason for that claim. As it has been held that seisin by the entirety does not create a joint tenancy either in substance or form (19 Wend. supra), and as a tenancy by the entirety depended wholly upon the marital relationship, there can be no reason why the seisin should be turned into a joint tenancy by virtue of the very fact which terminated the unity of person upon which the right of survivorship is itself founded, and to which it owed its continued existence.

It originated in the marital relation, and although the survivorship presents the greatest formal resemblance to joint tenancy, instead of founding the estate by the entirety upon the notion of joint tenancy, all the authorities refer it to the established effect of a conveyance to husband and wife pretty much independent of any principles which govern other cases. Jackson v. Mc Connell,

supra.

that every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be a joint tenancy (1 Rev. Stat. 727, § 44). This Statute did not reach an estate by the entirety, nor did the Statutes of 1848 and 1849 and 1860 and 1862 (Bertles v. Nunan, supra). It, therefore, still exists under our law.

At common law, husband and wife were regarded as one person, and a conveyance to them by name was a conveyance in law to but one person. These two real individuals, by reason of this relationship, took the whole of the estate between them, and each was seised of the whole and not of any undivided portion. They were thus seised of the whole, It is true that a conveyance of this kind, because they were legally but one person. if made to two persons who were not husband Death separated them, and the survivor still and wife, would at common law have created held the whole, because he or she had al-a joint tenancy. But our Statute provides ways been seised of the whole, and the person who died had no estate which was descendible or devisable. Being founded upon the marital relation and upon the legal theory of the absolute oneness of husband and wife, when that unity is broken, not by death, but by a divorce a vinculo, it stands to reason that such termination of the marriage tie must have some effect upon an estate which requires the marriage relation to support its We have seen, however, that a tenancy by creation. The claim on the part of the coun- the entirety is not a joint tenancy in form or sel for the wife is that it is only necessary substance. Upon what principle should the the parties should stand in the relation of termination of the former species of tenancy, husband and wife at the time of the convey resulting from an absolute divorce, be ance, and at that time the estate vests, and changed into the latter in the face of our Statno subsequent divorce can affect an estate ute relating to joint tenancies? The conveywhich is already vested. But the very ques-ance did not expressly declare that the tention is. What is the character of the estate ancy was to be a joint tenancy, and therefore which became vested by the conveyance? If when the original character of the tenancy it were of such kind that nothing but the ter- by the entirety is changed, it cannot be transmination of the marriage by the death of one formed into that of a joint tenancy without of the parties could affect the estate con- a clear violation of our Statute. veyed, then, of course, the claim of the counsel is made out; but it is an assumption of the whole case to say that the estate vested was of the character he claims. When the idea upon which the creation of an estate by the entirety depends is considered, it seems to me much the more logical as well as

The counsel for the defendant urges that we are giving, by this decision, a retroactive effect to a decree of divorce in a case not warranted by the Statute and in violation of the well-settled rule in this State as to the effect of such a decree. He says that we change the effect of the deed of conveyance,