110 Tenn. 638 | Tenn. | 1903
delivered the opinion of the court
The question for determination in this case is whether a conveyance of lands made by a husband to his wife,in the usual form, without any words indicating an intention to do so, has the effect in law, ex proprio vigore, to create a technical separate estate in the wife.
The facts necessary to be stated are these: Complainant, J. H. Barnum,and defendant Clara S. Barnum are husband and wife, without issue of their marriage. J. H. Barnum, on December 2, 1895, in consideration of an antenuptial contract conveyed to his wife, Clara S. Barnum, certain valuable lands lying in Shelby county, near Memphis, the conveyance being" in the usual form, without any words indicating an intention to create a separate estate, reciting a consideration of love and affection, and containing covenants of seisin and general warranty.
Clara S. Barnum, without the consent or joinder of her husband, J. H. Barnum, November 7,1902, conveyed by deed with proper privy examination, for a valuable consideration, a portion of these lands to the defendant E. B. Le Master. Complainant filed his bill November 14, 1902, charging that Mrs. Barnum had only a general es
Complainant, as stated, contends that the defendant Clara S. Barnum had only a general estate in the lands; that by virtue of his marital rights he has the right to the possession of them during their joint lives, and that she can not sell or convey them during that period without his joining in the conveyance, and therefore the sale and conveyance made by her to E. B. Le Master’ is a nullity, and a cloud upon his title. While the insistence of the defendant is that the conveyance to Mrs. Barnum, being one from husband to wife, by necessary implication and operation of law created and vested in her separate estate in the lands conveyed, notwithstanding the entire absence of any words evidencing such intention, and which are necessary in transfers of personal and conveyances of real property by strangers to married women in order to create such an estate; and that the conveyance made to E. B. Le Master vests in him a valid title, free from any and all claims of her husband.
In McCampbell v. McCampbell, 2 Lea, 664, 31 Am., Rep., 623, the court, citing with approval the Powell Case, says: “A consideration passing from the wife will sustain a direct conveyance of the j>roperty by the husband to her, and the very nature of the transaction will fix the property, even if personalty, with a trust for the separate use of the wife, without any words to that effect.”
In Sherron v. Hall, 4 Lea, 500, it is said: “But the gift was, in effect, as if the husband, for a valuable consideration, had made the conveyance to the wife, in which case the transaction, from its very nature would confer a separate estate, without express words.”
In Templeton v. Brown, 86 Tenn., 55, 5 S. W., 441, the court says: “The intention to create a separate estate must clearly appear either by express terms or by necessary implication; otherwise the niaritial rights of the husband will attach. When the gift is from a stranger, the. intention must usually appear from the express language of the donor in terms creating such an estate;
In Carpenter v. Franklin, 89 Tenn., 142, 14 S. W., 484, it is said: “An agreement that the gift of the husband to the wife shall be to her separate use arises, from the very necessity of the case, else the gift would be ineffectual. A gift to the wife of her own earnings, either from her labor as for sewing, or from the profits of her boarders, or of her savings from money furnished her for her own personal expenses or her household expenses, may be made out by circumstances, and, when so made out, is as effectual as if proven by express contract. Especially does the implication of gift to her sole and separate use arise when, as in this case, the wife, with the assent of the husband, loaned out such earnings and savings in her own name, taking title to herself.”
In Snodgrass v. Hyder, 95 Tenn., 575, 32 S. W., 764, the court again holds as follows: “A direct gift by the husband to the wife, during coverture, of money or other personalty, creates, by necessary implication, a separate estate in the wife, and likewise a gift of earnings or savings may be shown by circumstances, and, when so shown, is as effectual as if proven by express contract
Some stress in the earlier cases appears to be laid upon the fact that a valuable consideration was paid by the wife to the husband, but in the later ones the doctrine is applied without question to gifts from the husband. This conveyance, however, was made in consideration of marriage, which is a valuable consideration, and held to be sufficient to support a settlement by the husband upon his wife by all the authorities. Nelson v. Trigg, 2 Tenn. Cas., 645; Spurlock v. Brown, 91 Tenn., 241, 257, 18 S. W., 868.
While as stated, this doctrine has not been heretofore applied in this State in any reported case to a conveyance of real estate made by a husband to his wife, it has been by the courts of last resort in a number of other States, and an examination of the opinions of those courts will show that the same reasons advanced in our cases for the creation of a separate estate in transfers of personalty are there given to support the application of (he rule to conveyances of land.
The case of McMillan v. Peacock, 57 Ala., 127, is very much in point. In the opinion Chief Justice Brickell, speaking for the court, it is said: “To the creation of the equitable separate estate no particular form of words, no technical expressions, are necessary. A clear unequivocal, intention to exclude all marital rights of
“A gift or conveyance made by tbe busband directly to tbe wife, during coverture, at common law is void, as are all contracts made between busband and wife. Courts of equity have long been accustomed to support and maintain such gifts and conveyances, when not in fraudulent, as to creditors. Tbe necessity for creating in tbe wife a separate estate, vesting in her tbe entire, exclusive interest, is apparent, since otherwise tbe transaction, which was intended to have some effect, can have none in law or equity. And, further, all that is necessary to tbe creation of an equitable separate estate is, as we have seen, a clear and unequivocal manifestation and declaration of tbe intention to relinquish bis own rights, and to clothe tbe wife with them; and that intention a court of equity will carry into effect.”
Tbe case of Helmetag v. Frank, 61 Ala., 69, in which the opinion was also delivered by Brickell, C. J., is to tbe same effect. It is there said: “We regard it as tbe settled law of this State that a gift by busband to tbe
In tbe case of Kimbrough v. Kimbrough, 99 Ga., 134, 25 S. E., 176, tbe supreme court of Georgia bolds: “Where a husband, with bis own money, purchased and paid for a borne, and deliberately and intentionally bad tbe same conveyed to bis wife, with no understanding or agreement that be was, in any event, to have an interest in tbe title, tbe transaction amounted to a gift from tbe husband to tbe wife, and, as between them, tbe property became absolutely her separate estate. Where the husband and wife bad joint possession of tbe property thus conveyed, and after they bad lived together thereon for a time she was forced, by mistreatment and cruelty on bis part, to leave tbe premises, and be remained in possession, be was, in law, her tenant at sufferance, and upon bis refusing to surrender possession to her.when demanded it was her right to sue out a dis-possessory warrant for the purpose of ejecting him.”
In tbe case of Whitten v. Whitten, 3 Cush. (Mass.), 199, wbicb was tbe case where land was purchased by tbe husband with bis money, and tbe title taken in bis wife, tbe court says: “Where tbe husband himself makes a grant or gift to tbe wife, tbe intention to relinquish bis own rights in favor of tbe wife, and thus to give her a separate property or interést, is necessarily and most clearly and unequivocally manifested and declared.”
In Garland v. Pamplin, 32 Grat., 314, it is held: “The general rule is that a .conveyance by the husband directly to his wife, although void at law, or to a third person for her benefit, is construed as operating to her separate use; and the reason assigned is that the conveyance otherwise would be wholly inoperative.”
A case in point is Leake v. Benson, 29 Grat., 156, in which it is held: “Where the conveyance is by the husband to the wife, as a general rule it will be construed as operating to her separate use, although no such words are used as would be necessary to create a separate estate in conveyance by a stranger. The reason is said to be that otherwise the conveyance would be wholly inoperative.”
In Deming v. Williams, 26 Conn., 231, 68 Am. Dec., 386, the court discusses this question, and, citing a large number of authorities, thus lays down the rule: “Undoubtedly the cases all of them import that the wife is to take to the exclusion of the husband. But this is to be inferred from the fact that it is a bona fide gift from the husband to the wife. If this is not irrevoc
The cases of Steel v. Steel, 36 N. C., 452; Sims v. Rickets, 35 Ind., 181, 9 Am. Rep., 679; Haines v. Haines, 54 Ill., 77; Smith v. Seiberling (C. C.), 35 Fed., 677; Maraman v. Maraman, 4 Metc. (Ky.), 84; Callahan v. Houston, 78 Tex., 494, 14 S. W., 1027; Story v. Marshall, 24 Tex., 305, 76 Am. Dec., 106; Putnam v. Bicknell, 18 Wis., 333 — are in line with those from which we have quoted, and fully sustain the view we have taken of the question.
These are all cases decided by courts of the highest authority, and would seem to be conclusive of the matter.
Counsel for the complainant rely upon the fact that we have no case in which this doctrine has been applied to conveyances of lands in Tennessee. But they have been unable to produce a case either in this or any other
The reasons, we have said, given in the opinions of this court for holding that transfers of personal property by husbands to their wives create separate estate in the property without language expressing that intention, apply with the same force to the conveyances of real property, and there is no sound basis upon which a distinction can be made.
It is a question of intention and effect. The law conclusively presumes that the husband intends that his act shall have the effect that it purports to have upon its face, that he part with all his interest in the property conveyed. If a transfer of personal property to the wife by her husband did not, of its own force, vest in her a separate estate, the transfer would be a farce, and perhaps a fraud upon her, because the husband would immediately become again the owner of it by virtue of his marital rights, and the wife would take nothing. If the same result did not follow a conveyance ■of land by a husband to his wife, he would, by the same marital rights, become seized of an estate therein during their joint lives, and, if they have a child born alive, for his life, if he survives her, as tenant by the curtesy, and
We are therefore of tbe opinion and bold that tbe ■chancellor Avas in error in decreeing that tbe conveyance made by Mr. Barnum to'Mrs. Barnum did not pass to .and vest in tbe latter a separate estate in tbe lands conveyed, and that she did not have tbe right to sell and ■convey tbe same, upon proper privy examination, without bis consent and joinder in the deed. Tbe deed máde by Mrs. Barnum is valid and effective to vest in tbe purchaser a good title to tbe property free from all marital