36 Tenn. 683 | Tenn. | 1857
delivered the opinion of the Court.
The facts upon which the question arises are these: On the 31st of January, 1835, some time after the marriage of the complainant and the defendant William Ames, one Lawrence Sypert conveyed to them jointly a tract of land situate in Wilson county, containing fifty-four acres, for the consideration, as recited in the deed, of three hundred and thirty-three dollars. This deed of conveyance was properly proved and admitted to registration on the day of its execution. The bill alleges, and the deed recites, and there is proof tending to establish the factj that the purchase - money of said tract of land was part of the distributive portion of the complainant of the estate of her deceased father. On the 14th of May, 1853, said tract of land was sold at execution sale, in satisfaction of a judgment against the defendant William Ames; and the defendant Norman, as a creditor of Ames, afterwards redeemed the land from the purchaser at said sale, previously to the filing of the present bill, and, by virtue of the title thus acquired, he resists the right of the complainant to recover the same. And the question for our determination is, can he successfully do so ? Upon this precise question we have found no direct adjudication, but upon principle we think the question is free from doubt.
The first question to be considered is, had the husband
First. By tbe common law, tbe husband and wife are as one person in law: tbe legal existence of tbe wife is incorporated into that of tbe husband; and though, in modern times, exceptions to this doctrine have been introduced, tbe general principle still exists. As one of tbe necessary results of this unity of persons in husband and wife, it has always been held that where an estate is conveyed or devised to them jointly, they do not take in joint tenancy: constituting one legal person, they cannot be vested with separate or separable interests; they are said, therefore, to take by entireties; that is, each of them is seised of tbe whole estate, and neither of a part. And this tenancy may exist whether tbe estate is in fee, for life, for years, or other chattel interest, and whether tbe property be in possession, reversion, or remainder. Co. Lit., 187, b.; 1 Bright’s Husband and Wife, 25. As a consequence peculiar to this tenancy, it is laid down in the books that, during their joint lives, neither can alien the estate thus held without the consent and concurrence of the other, and the survivor takes the whole estate: neither can sever the joint interest: the whole estate belongs to the wife as well as to the husband, and the husband cannot by his own conveyance, the wife not joining therein, divest her estate. 1 G-reenleaf’s Cruise, 865; 2 Bl. Com., 182; 2 Kent’s Com., 132; 4 Kent, 363.
From the peculiarity of this tenancy, the unity and
It seems, therefore, that notwithstanding the peculiar nature of this tenancy, the husband, during the coverture, acquires substantially the same rights, and power of disposition of the estate thus held, that he does in regard to the wife’s individual estate owned by her at the time of her marriage. Consequently it follows that the husband, without the consent or concurrence of the wife, can charge such estate at law with his debts; that he may transfer it; that it may be seized and sold by his creditors. But the assignee of the husband, or purchaser at execution sale, can acquire no other or greater interest than was vested in the husband; and, consequently, he holds in subordination to the contingent right of the wife, who, in case she
Secondly. It being established that the interest of the husband in such an estate may be sold on execution for the satisfaction of his debts, we proceed to inquire whether the title of the purchaser is liable to be affected by a divorce a vinculo afterwards granted to the wife.
The decree in this case would seem to take it for granted that, upon a dissolution of the marriage by a divorce at the suit of the wife, the same legal consequences follow, in all respects, as if the marriage had been dis~ solved by the death of the husband. This is a very erroneous assumption, so far at least as relates to the question under consideration.
In England, divorces a vinculo matrimonii are granted only for such causes as, by the ecclesiastical law, are sufficient to avoid the marriage in the spiritual Court; and in such cases the marriage is declared void as having been absolutely unlawful ah initio. 1 Black. Com., 435, 440. In a divorce of this.kind, grounded upon the nullity of the marriage contract, it is said in the books that the husband acquires no right over the wife’s property; though, in some of the authorities, a distinction appears to be taken between the wife’s personal and real property. If the husband, before the divorce, had disposed of the goods of the wife without collusion, it seems she was without remedy; but if the sale or gift were collusive, she might recover the goods so far as they could be traced, and for the rest, as money, etc., she might sue in the spiritual
In regard to the wife’s real property, it is settled that if the husband aliened the land of the wife, of which he was seised in right of the wife, and a divorce was after-wards obtained, the wife’s right remained unaffected by the husband’s conveyance: such conveyance did not work a discontinuance of her estate, and, by construction of the statute 32 Henry YIIL, it was held that she might immediately enter.
And, more directly to the point under consideration, it is laid down that if husband and wife purchase an estate jointly and are disseised, and the husband releases, and afterwards they are divorced, the wife shall have the moiety, though before the divorce there were no moieties, for the divorce converts it into moieties. Bright’s Husband and Wife, vol. i., 25, 162, 165; Ibid, vol. ii., 364.
This must necessarily be so; for although, in such case, the relation of husband and wife existed de facto at the time the conveyance was made to them jointly, yet, in contemplation of law, that unity of persons out of which this anomalous tenancy springs, and on which alone it depends as a mere incident, never did exist; and, as some effect must be given to the conveyance, the divorce is regarded as having severed the entirety, and turned it into moieties.
It would seem reasonable that this principle should be held equally applicable to cases where a marriage lawfully contracted is dissolved by a divorce a vinculo for some
If the rights of husband and wife in relation to an estate held by entireties are not altered by the decree declaring the divorce, what becomes of the joint estate? what are their respective rights in the future in regard to it ? They are no longer one legal person: the law itself has made them “twain.” They are no longer capable of-holding by entireties; the relation upon which that tenancy depends has been destroyed: the one legal person has been resolved, by judgment of law, into two distinct, individual persons, having in the future no relations to each other; and with this change of their relations must necessarily follow a corresponding change of the tenancy dependent upon the previous relation. As they cannot longer hold by a joint seisin, they must hold by moieties. The law, in destroying the unity of persons between them, has, by necessary consequence, destroyed the unity of seisin in respect to their joint estate; for independent of the matrimonial union this tenancy cannot exist. And hence it has been held that a conveyance to a man and woman while single, and who afterwards intermarry, as they took originally by moieties, they will continue to hold by moieties after the marriage. 1 Institutes, 187, h.
But if this reasoning be correct, as between the husband and wife, the question remains, what effect has the divorce upon the rights of a third person who has acquired the interest of the husband by purchase at execution sale prior to the divorce ?
We are of opinion that the subsequent divorce has no effect whatever upon the rights of such purchaser. It is
The purchase, in the present case, was not made in view of the contingency of the wife’s divorce at some future period, and cannot be affected by it.
The defendant by his purchase became invested with the right of the husband as it existed at the time of the sale; that is, a right to occupy and to enjoy the profits of the land as owner during the joint lives of the husband and wife; subject to the contingency that if the complainant survives her former husband, his estate will then terminate; but if the husband survives, he will become absolute owner of the whole estate.
The only remaining inquiry is, whether the act of 1849-50, ch. 36, has any application to this case. And we think it has not. This act only protects from the creditors of the husband the interest in the wife’s lands vested in him jure uxoris. In other words, it is applicable only to cases where the fee is in the wife alone, and not to cases where they are jointly seised in fee.
There is much force in the suggestion that to extend
No equity can arise in favor of the complainant in this case in consequence of the land having been purchased with money derived from her father’s estate. The money had been previously reduced to possession by the husband, and in law it thereby became his money.
The only claim that can be admitted, on the part of the complainant - in the present case, rests alone upon the doubtful contingency of her' outliving her former husband. In that event, she will instantly become absolute owner of the entire tract of land; in the contrary event, she will have no interest in the land whatever.
The decree will be reversed, and the bill be dismissed as to the defendant Norman; but without prejudice to any future right which by possibility may arise in complainant’s favor.