Citizens Loan & Trust Co. v. Witte

116 Wis. 60 | Wis. | 1902

Cassoday, C. J.

The defendants Otto and Katharine Witte purchased the mortgaged premises, and in the deed to them covenanted and agreed to assume and pay the mortgage ■as a part of the purchase price. They now claim, and the trial court apparently held, that their agreement was a nullity by reason of the fact that they were husband and wife and ■sued as such, and that the husband must be held jointly with his wife or not at all. They further contend that she was not liable because it was not alleged nor proved that at the time ■of receiving tbe deed she bad any separate estate or property of any kind, nor tbat slie was in business for berself, or contemplated going into such business. In support of such proposition, counsel cite tbe statutes and rely upon several decisions of this court. Gallagher v. Mjelde, 98 Wis. 509, 14 N. W. 340, and cases there cited. Attention is also called to our statutes, wbicb declare, in effect, tbat “tbe nature and properties” of “estates in severalty, in joint tenancy, and in common” continued to be tbe same as was established by law, -except so far as modified by statutes; and tbat “all grants and devises of lands made to two or more persons” should “be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy,” but tbat such provision of tbe statute should “not apply to mortgages, nor to devises, or grants made in trust, or made to executors, or to husband and wife.” Sees. 2061-2069, Stats. 1898. Under these statutes, it is claimed tbat tbe estate created by tbe deed in question is tbe same as it would have been at common law; tbat is to say, tbe husband and wife did not .take tbe title properly as joint tenants, nor tenants in common, but both were seised of tbe entirety, and "the survivor will be entitled to tbe whole estate. 2 Blackstone, Comm. 182; 4 Kent, Comm. 362. Such rule of the common law has repeatedly been recognized by this court. Ketchum v. Walsworth, 5 Wis. 95, 103, 104; Bennett v. Child, 19 Wis. 302, 366; Brown v. Bamboo, 90 Wis. 151, 155, 62 N. W. 921; Farr v. Trustees, 83 Wis. 446, 453, 454, 53 N. W. 738; Feidler v. Howard, 99 Wis. 388, 393, 394, 75 N. W. 163. Tbe important question presented is whether tbe rule has been modified by tbe statute enlarging the rights of married women and, if so, when ? Prior to. tbe Eevised Statutes of 1818, those statutes related only to tbe sole and separate property of a married woman. „And so in accordance with the common-law rule, which considered tbe husband and wife as one person in law, it was held tbat tbe husband bad the entire control during bis life of lands so conveyed to bim and bis wife, and might convey and mortgage them for that period, but that be could not alienate them so as to give title-after bis death, if the wife survived bim. Bennett v. Child, supra; Bertles v. Nunan, 92 N. Y. 152, 44 Am. Rep. 361. To obviate the effect of that decision, secs. 1, 3, cb. 95, R. S. 1858, were amended by secs. 2340 and 2342, R. S. 1818, as-appears by the revisors’ notes to those sections. To effect that object, sec. 1, cb. 95, R. S. 1858, was amended by inserting-immediately after the word “estate” the following words, “of every description, including all held in joint tenancy with her husband,” so that the same reads, with those words inserted in italics, as follows:

“The real estate of every description, including all held in-joint tenancy with her hush and, and the rents, issues and profits thereof, of any female now married, shall not be subject to the disposal of her husband, but shall be her sole and separate property as if she were unmarried.” Sec. 2340,. R. S. 1878.

And to further effect that object, sec. 3, ch. 95, R. S. 1858,. was amended by inserting immediately after the words “estate therein” the following words, “of any description, including all held in joint tenancy with her husband,” so that the same reads, with those words inserted in italics, as follows :

“Any married female may receive by inheritance, or by gift, grant, devise or bequest from any person other than her husband, and hold, to her sole and separate use, and convey and devise real and personal property, and any interest or estate therein of any- description, including all held in joint' tenancy with her husband, and the rents, issues and profits-in the same manner, and with like effect as if she were unmarried, and the same shall not be subject to the disposal of' her husband, nor be liable for his debts.” Sec. 2342, R. S. 1878.

Thus, it appears that both sections as so amended, as well'as the revisors in their notes, treat the estate created by deed: running to husband and wife, as in tbe case at bar, as an estate “held in joint tenancy,” instead of being held as tenants of tbe entirety, as at common law. Technically, tbe language is incorrect. And yet tbe common-law rule, as mentioned in the authorities cited, is that tbe husband and wife, as such grantees, are not “properly joint tenants,”- — not “strictly joint tenants.” Undoubtedly, at common law tbe same words of conveyance which would make two other persons joint tenants would make the husband and wife tenants of the entirety. 2 Kent, Comm. (14th ed.) 132; Ketchum v. Walsworth, 5 Wis. 103. As stated by Blackstone:

“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 Blackstone, Oomm. 180.

At common law, a deed to husband^ and wife answered all of these requirements, except the fact that they being considered one person in law, and the husband being that person, enlarged his rights during coverture correspondingly, but the dominant characteristic of survivorship was the same. In view of what has been said, it may be that the learned re-visors were justified in broadly using the words “held in joint tenancy,” as they did in the sections of the statute quoted. Manifestly, the revisors intended by the amendments to cover cases of tenants of the entirety held by husband and wife, especially as in one section the words “held in joint tenancy”' follow the words, “the real estate of every description,” and in the other section follow the words, “any interest or estate-therein of any description,” and in both sections they are-followed by the words, “and the rents, issues and profits thereof,” or their equivalent. Unless that is so, the new provision inserted in the sections is without significance. We must bold tbat the agreement of Otto and Katharine Witte to assume and pay the mortgage is binding upon them, and tbat they are liable for any deficiency tbat may arise upon the foreclosure sale of the premises. Tbis is in harmony with the rule tbat a married woman without any separate estate may acquire land by purchase from a stranger entirely on credit, and bind herself for the payment of the purchase price. Dayton v. Walsh, 47 Wis. 113, 2 N. W. 65; Gallagher v. Mjelde, 98 Wis. 513, 74 N. W. 340, and cases there cited.

By the Court. — Tbat part of tbe judgment of tbe superior court of Milwaukee county appealed from is reversed, and tbe cause is remanded with direction to complete tbe entry of judgment in accordance with tbis opinion, and for further proceedings according to law.