Definition
Tout et non per my (also rendered as "tout et non per mie" or "the whole and not by the moiety") is a Latin-Law French phrase describing the characteristic mode of ownership in a tenancy by the entirety. It means that each spouse holds the whole of the property jointly, and neither holds a fractional or divisible share (a "moiety"). The husband and wife are treated as a single legal unit — neither owns half; each owns all.
The phrase captures the essential distinction between tenancy by the entirety and ordinary joint tenancy or tenancy in common: in a tenancy by the entirety, there is no individual share to convey, attach, or partition. The estate belongs entirely to the marital unit, not to either spouse separately.
Common Confusion
TOUT ET NON PER MY vs. JOINT TENANCY: The two forms of co-ownership share the four unities (time, title, interest, and possession) and both carry a right of survivorship. The critical difference is that tout et non per my applies only to a tenancy by the entirety, where the fifth unity — marriage — is also required. In joint tenancy, each co-owner does hold a severable moiety and may convey or encumber their individual share, thereby destroying the joint tenancy. In a tenancy by the entirety, no such unilateral severance is possible because neither spouse holds a separate share to sever.
TOUT ET NON PER MY vs. PER MY ET PER TOUT: In joint tenancy, the technical formula is per my et per tout — "by the moiety and by the whole." Each joint tenant holds both a fractional share (for purposes of lifetime conveyance) and the whole (for survivorship). The formulas are therefore opposites. Tout et non per my eliminates the "per my" element entirely, leaving only the whole estate held by the marital unit.
Why It Matters in Research
Researchers encountering this phrase in historical deeds, conveyancing treatises, or older court opinions are almost always looking at a discussion of tenancy by the entirety and its immunity from individual alienation or creditor attachment. The phrase itself rarely appears in modern American case law, but the doctrine it expresses — that neither spouse may separately convey, partition, or encumber the entirety estate — remains live law in the jurisdictions that recognize tenancy by the entirety.
The practical trap in historical research is the inconsistency of the phrase's spelling and rendering. Older reports use tout et non per mie, tout et non per my, and occasional hybrid forms. The Law French is archaic enough that word-search retrieval in digitized sources will miss variants unless the researcher searches for "entirety" or "per tout" as well.
When researching whether a particular conveyance created a tenancy by the entirety in a historical transaction, the operative rule synthesized from Bouvier and the cases he cites is straightforward: the same words that would create a joint tenancy between strangers will create a tenancy by the entirety between spouses. No special formula is required; the marital relationship at the time of conveyance does the doctrinal work. The tout et non per my character of the estate follows automatically.
A second research alert: when a wife pays consideration but consents to title in both names, courts applying the older doctrine held that a tenancy by the entirety arose and that the husband's conveyance passed only his right of possession during coverture — not a severable interest. This result surprises modern researchers accustomed to equitable-title analysis and community property frameworks.
Historical Dictionary Support
Bouvier's Law Dictionary is the primary English-language legal dictionary source for this phrase in American practice. Bouvier's entry is brief but precise: it confirms that the ordinary words of conveyance sufficient for joint tenancy between strangers produce a tenancy by the entirety between spouses, and it restates the rule on consideration paid by the wife. The entry is incomplete as preserved in the source material, but the principle stated is consistent with the mainstream common law position.
Historical English sources, including Littleton's Tenures and Blackstone's Commentaries, use the per tout et non per my formulation (with reversed word order) to explain the entirety estate as a theoretical matter. What Bouvier adds is the American jurisdictional grounding: the cases he cites (South Carolina, Mississippi, Oregon, Tennessee) confirm the doctrine was broadly received across common law states in the late nineteenth century, though its subsequent trajectory varied considerably by jurisdiction.
What historical dictionaries largely omit is the developing tension between the entirety doctrine and married women's property acts. As states enacted legislation expanding wives' individual property rights, courts divided on whether the tout et non per my character of the entirety estate survived or was modified by statute — a doctrinal conflict that older dictionary entries do not address.
Jurisdictional Note
Tenancy by the entirety — and with it the tout et non per my character of the estate — is not universally recognized in the United States. Several states have abolished it, and community property states have their own framework governing spousal co-ownership. In jurisdictions that retain it, the rules on creditor attachment and unilateral conveyance vary. Historical sources reflect common law states pre-dating many of these statutory changes and cannot be read as statements of current law in any given jurisdiction.