133 Tenn. 65 | Tenn. | 1915
delivered the opinion of the Court.
The action is ejectment brought by the collateral kindred and heirs at law of Darcus Hutchens, The
The defendants insist that, under the deed to Hutch- • ens and wife, they were seized of an estate by the en-tireties, and therefore that no estate in the land passed to her heirs at law upon the death of Mrs. Hutchens.
To support complainants’ theory, the first insistence ' advanced is that the deed on its face did not purport, and did not convey, an estate by the entireties to the grantees. So far as the provisions of the deed need be noticed, they were as follows:
*68 “This indenture; made this 22d day of September, A. D. 1897, between Rufus M. Bennett, of Knox county, in the State of Tennessee, of the first part, and Dar-cus Hutchens and Jefferson Hutchens, of the same county and State, of the second part, witnesseth.”
Then follows a recital that the parties of the first part, for ánd in consideration of the sum of $1 in hand paid by the parties of the second part, the receipt of which is acknowledged, have granted, bargained, sold, and conveyed,
“and doth hereby grant, bargain, sell and convey unto the., said parties of the second part the following described premises, to wit.”
Here is recited a description of the land, and then:
“With the hereditaments and appurtenances thereunto appertaining, . . . except the said Darcus Hutchens and Jefferson Hutchens of the second part are to pay an annual rent of the sum of $25 to the said Rufus M. Bennett as long as he may live.”
Then follow the usual habendum clause and general covenants of warranty, the testimonium clause, the signature of the grantor, signature of a witness, certificates of acknowledgment, etc., all in proper form.
The stipulation for an annual rental was part of the consideration for the deed. The bill avers that the grantees in the deed were husband and wife when it was made.
We think it is clear that this deed vested in Jefferson and-Darcus Hutchens an estate by the entireties. Such .a deed to- persons not husband and wife, considered
It is immaterial that the deed in the present case did not on its face name the grantees as husband and wife; nor is it material that we find in the deed no words used to indicate a purpose in the grantor to create an estate by the entireties; nor a purpose in the grantees that such- an estate should be conferred upon them. The estate, by the entireties, upon the ' execution of the deed, depended on the unity of the husband and wife, under the common law.
“If an estate be given to a man and his wife they are neither properly joint tenants nor tenants in common;
‘ ‘ The authorities agree that ‘ the same words of conveyance which would make two other persons joint tenants will make a husband and wife tenants of the entirety, so that neither can sever the jointure, but the whole must accrue to the survivor.’ ” Cole Manufacturing Co. v. Collier, 95 Tenn. (11 Pick.), 116, 117, 31 S. W., 1000, 30 L. R. A., 315, 49 Am. St. Rep., 921.
“The properties of a joint estate are derived from its unity, which is fourfold — the unity of interest, the unity of title, the unity of time, and the unity of possession; or, in other words, joint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession.” 2 Bla. Com., 180.
Grenerally, on the same subject, see the following of our cases: Taul v. Campbell, 15 Tenn. (7 Yerg.), 319, 27 Am. Dec., 508; Ames v. Norman, 36 Tenn. (4 Sneed), 683, 70 Am. Dec., 269; Johnson v. Lusk, 46 Tenn. (6 Cold.), 114, 98 Am. Dec., 445; Berrigan v. Fleming, 70 Tenn. (2 Lea), 271; Shields v. Netherland, 73 Tenn. (5 Lea), 193; McRoberts v. Copeland, 85 Tenn. (1 Pick.), 211, 2 S. W. 33; Jackson, Orr & Co. v. Shelton,
Complainants’ second insistence is that estates by the entirety were abolished by onr Acts 1784, ch. 22, sec. 6. See section 2010, Code 1858, and section 3677, Shannon’s Code,,which legislation is as follows:
“In all estates, real and personal, held in joint tenancy, the part or share of any joint tenant dying* shall not descend or go to the surviving tenant or tenants, but shall descend or be vested in the heirs, executors, or administrators, respectively, of the tenant so dying, in the same manner as estates held by tenancy in :com- ? J mon.
The final insistence offered by complainants is that the effect of chapter 26 of the published Acts of 1913 was to abrogate the fundamental principles of the common law under which, by virtue of the marriage, husband and wife became a legal unity, and their argument is that, such being the effect of the act, the result was to destroy all existing estates b,y entire-ties, including that held by Hutchens and wife in the land sued for herein. The bill avers that the wife, Mrs. Hutchens, died after the act took effect.
We have had occasion, during the present term, to consider this act in the case of Sarah Lillienkamp v. W. T. Rippetoe, 179 S. W., 628, Knox Law, and an opinion for publication was handed down. The conclusion we reached in that case was not in accord with the present insistence of the complainants.
The act does not, by its terms, purport to abrogate estates held by entireties at the time of its passage, and created by contract antedating its passage. If the legislature had intended the .act to have such effect, we must assume that it would either in plain terms have so declared, or that it would have employed-terms from
“That a statute will not be construed to alter the common law further than the act expressly declares, or than is necessarily implied from the fact that it covers the whole subject-matter.” State v. Cooper, 120 Tenn. (12 Cates), 549, 113 S. W., 1048, 15 Ann. Cas., 1116 and authorities cited; Sarah Lillienkamp v. W. T. Rippetoe, supra, and cases cited; Wilson v. Frost, 186 Mo., 311, 85 S. W., 375, 105 Am. St. Rep., 619, 2 Ann. Cas., 557, and note.
Examination of the cases cited in the note last above will disclose the weight of authority to be'in support of our view of the effect of .the act of 1913.
The three questions we have discussed dispose of all of the assignments of error made by complainants, and it results that the decree of the chancellor will be affirmed, at the complainants ’ cost.