Davidor v. Rosenberg, 130 Wis. 22. tended to leave the state with such personal property and leave the defendant remediless. Upon this affidavit a writ of ne exeat was issued against the plaintiff and said Dawson and they were arrested and gave bail. Upon motion the writ of ne exeat was vacated, and the defendant appeals from the order of vacation. The writ of ne exeat is not created, nor are its functions defined, by statute. Secs. 2784, 2785, 2786, Stats. 1898, recognize the common-law writ and make certain provisions regulating the practice, but do not pretend to enlarge its scope. As to the general functions of the writ and the grounds upon which it may issue we must turn to the principles of the common law. Bonesteel v. Bonesteel, 28 Wis. 245. At common law it was simply a writ to obtain equitable bail. It was issued by a court of equity on application of the complainant against the defendant when it appeared that there was a debt positively due, certain in amount or capable of being made certain, on an equitable demand not suable at law (except in cases of account and possibly some other cases of concurrent jurisdiction), and that the defendant was about to leave the jurisdiction, having conveyed away his property, or under other circumstances which would render any decree ineffectual. Dean v. Smith, 23 Wis. 483; Rhodes v. Cousins, 6 Rand. 188, 191, 18 Am. Dec. 715; Gilbert v. Colt, 1 Hopk. Ch. 496, 14 Am. Dec. 557, and note. It is issued only against a debtor who was a party to the suit, not against a third person not a debtor whether he be a party to the suit or not. The ancient writ always recited that it appears that the defendant is indebted to the complainant and designs quickly to go to parts beyond the seas. Beames, Ne Exeat, 18. Nor is this latter rule in any wise changed by the terms of sec. 2784, supra, which provides that the writ may be granted to prevent "any person" from leaving the state, for the obvious reason that the following section provides that no writ shall be granted unless it appears that “suf Davidor v. Rosenberg, 130 Wis. 22. ficient grounds" exist therefor. Sufficient grounds means, as we have seen, grounds sufficient under the principles of the common law, and no grounds are sufficient under those principles unless it appears that the party is a debtor. So it is very certain that the writ was rightly vacated as to Alice M. Dawson, who was neither a debtor nor a party to the action. It seems equally certain that the writ was not granted at common law on the application of the defendant against the plaintiff. We have been referred to no case where the defendant was awarded the writ against the plaintiff, nor have we found any. On the contrary, both the decisions and the text-books describe the writ as one issued on application of the complainant and against the defendant, and our statutes plainly recognize and emphasize this principle by providing that it shall only be granted on the affidavit of the plaintiff or some indifferent witness, and that the penalty of the bond or security to be given by the defendant shall be indorsed on the writ. Sec. 2785, supra. Whether a defendant who has already interposed a counterclaim, showing a certain debt due him from the plaintiff on an equitable demand, may be regarded as a plaintiff so as to be entitled to the writ upon a proper showing, is a question not before us and one on which we intimate no opinion. When this writ was granted no such counterclaim had been interposed, and the writ was therefore granted without jurisdiction in any view of the case. By the Court.-Order affirmed. Bassler v. Rewodlinski, 130 Wis. 26. BASSLER and others, Appellants, vs. REWODLINSKI and another, Respondents. November 7-December, 4, 1906. Joint tenancy: Common-law rights on death of joint tenant: Survivorship: Tenancy in common: Devise by one joint tenant: Effect on right of survivorship: Abolition of joint tenancy by statute: Husband and wife: Tenancy by entireties: Abolition by statute: Rights of wife in realty conveyed jointly to husband and wife. 1. A joint tenancy by the common law is one where the interests are created by one and the same person and by one and the same conveyance and commence at one and the same time and are held by one and the same possession, and so have the four unities of interest, title, time, and possession. 2. A joint tenancy by the common law differs from others in that. if the four unities continue till the death of one of the parties, the other or others immediately become the owners of such interest as joint tenants by right of survivorship. 3. Anything which destroys the unity of title or interest, as by alienation of one joint tenant, makes the owners of the several interests a tenant in common with the remaining joint tenant. 4. There can be no destruction of a joint tenancy by devise, since the right of survivorship takes precedence thereof. 5. Joint tenancies, according to the common law, except as expressly declared, were abolished generally by sec. 2068, Stats. 1898, but an exception was made by sec. 2069 as to husband and wife. 6. At the common law, circumstances making a joint tenancy generally, as to husband and wife, make them tenants by the entireties, differing from joint tenancies, in that there is no right of severance, terminating the right of survivorship. 7. The added element mentioned, creating tenancies by the entirety, has not existed in this state since the revision of the statutes of 1878. Since that time such circumstances as by the common law would make husband and wife tenants by entireties, make them joint tenants. 8. A married woman joint tenant is under all the disabilities of a joint tenant by the common law. She cannot under the statute, as regards her capacity to take, hold, enjoy, and convey property, devise her interest held as joint tenant. She has the same right as if she were unmarried, which would not include that of devising property held in joint tenancy. [Syllabus by MARSHALL, J.] Bassler v. Rewodlinski, 130 Wis. 26. APPEAL from a judgment of the circuit court for Milwaukee county: WARREN D. TARRANT, Circuit Judge. Affirmed. Action to enforce alleged liens on real estate claimed to have been created as indicated by the facts found by the trial court, which may be stated briefly thus: (1) Johanna Ertman died in 1899 leaving her surviving Paul Ertman, her husband, and the plaintiffs, sons by a former husband. (2) January 22, 1892, said Paul Ertman, who was the owner of the real estate in question, and the said Johanna, his wife, conveyed such property to Valentine Lukaszewski, who reconveyed the same to them as husband and wife, and they owned and occupied it thereafter until the death of Johanna. (3) April 10, 1895, they duly mortgaged the property to Henry Herman to secure indebtedness to him of $800, and on May 10, 1897, they mortgaged the same to him to secure a like indebtedness of $100. After the death of Johanna her husband mortgaged the property to said Herman for $900, to take up the two prior mortgages. (4) Thereafter said Paul Ertman sold the said real estate and conveyed the same to the defendants, who have since occupied it. (5) Johanna Ertman left a last will and testament, which was in due time duly admitted to probate, whereby she willed $200 to each of the plaintiffs to be paid out of her interest in said real estate, and she willed the residue of such realty to her husband. (6) The will was admitted to probate November 8, 1899, by the county court of Milwaukee county, Robert E. Bailey being appointed executor. (7) Said Johanna left no personal property and no real estate, except that in question. (8) July 7, 1903, the said county court, in due form, assigned said realty to Paul Ertman without prejudice to any conveyance made by him, subject to the payment of $200 to each of the plaintiffs, and $45.15 to the executor, which were declared to be liens upon the property. On these findings the court concluded as matter of law that at the time of the death of Johanna Ertman she and her husband were joint tenants of the Bassler v. Rewodlinski, 130 Wis. 26. realty and thereupon that the latter took the whole by right of survivorship free from anything contained in the former's will, and that the defendants, as owners under Paul Ertman, were entitled to judgment dismissing the complaint with costs. Judgment was rendered accordingly, from which this appeal was taken. For the appellants the cause was submitted on the brief of J. E. Wildish, and for the respondents on that of Roemer & Aarons. MARSHALL, J. This case turns upon whether a joint tenancy in lands of husband and wife has the same characteristics as to survivorship under our statutes as between others at common law. It is conceded that the circumstances detailed in the findings satisfy all the essentials of a joint tenancy at common law in cases other than those of husband and wife. The interests were created by one and the same purchase and by one and the same conveyance; they commenced at one and the same time and were held by one and the same possession. Thus we have the four unities: unity of interest, unity of title, unity of time, and unity of possession. The special significant incident of joint tenancy is the right of survivorship, by which on the death of any tenant his interest goes to his survivors. Anything which destroys the unity of title or interest without affecting the unity of possession will turn the interest severed from the others into a tenancy in common as regards the remaining joint tenants. 2 Bl. Comm. 192; 1 Washb. Real Prop. (6th ed.) § 864. The most familiar method of so severing the interest of one joint tenant from the interests of others is by alienation. As such severance to be effective is required to occur during the lifetime of the joint tenant, a devise by such a tenant is inoperative. The rule on that subject is thus stated at sec. 865 in Washburn on Real Property: "A devise by one joint tenant of his share will be inoperative, inasmuch as the right of survivorship takes precedence |