Donegan v. Donegan

103 Ala. 488 | Ala. | 1893

HARALSON, J.

1. The deed under which the parties to this suit hold the property sought to be sold for division, on the ground that it can not be partitioned in kind, conveyed the property to the husband and wife, without any declaration in the instrument as to what their interest or tenancy should be. There is no doubt that, under such a deed, at common law, the husband and wife acquired an estate, not as joint tenants, or tenants in common, — not one which they acquired by moieties, but by entirety. For a full discussion of an estate by entirety, with a collection of the English and American authorities on the subject, reference may be had to 1 Devlin on Deeds, §§ 117,118 ; Stewart on Hus- ■ band and Wife, §§ 303-309.

2. But, there are two reasons why the complainant' and defendant do not hold this property by entireties. After they acquired the property under the deed to them, in a proceeding instituted for that purpose in the chancery court of Madison county, the complainant was, on the 13th of September, 1892, by the decree of said court, regularly and legally divorced from the bonds of matrimony with the respondent. This destroyed the common law fiction of unity — the two' in one — of the two persons on which the doctrine of estates by entirety rested, and rendered them tenants in common. — Stewart on Husband & Wife, § 309 ; Stewart on Marriage & Divorce, §§ 441-444; Bishop on Marriage & Divorce, § 716 ; Hinson v. Bush, 84 Ala. 368; Baggs v. Baggs, 55 Ga. 590, 591; Harrer v. Wallner, 80 Ill. 199, 204; Lash v. Lash, 58 Ind. 526, 528 ; Depas v. Mayo, 11 Mo. 314.

3. And, however, it may be elsewhere, this.court has. decided that such a conveyance, under the statutes of this State, creating and regulating the separate estates of married women, — such as existed at the date of this deed, — creates the same estate in the parties, as if it had been made before the coverture ; that being invested with the capacity of taking by moieties, the reason of the rule of the common law, that they should take 'by entirety, — per tout, not per my, — has ceased to exist. This doctrine, since first announced, has been recognized by repeated subsequent decisions. — Walthall v. Goree, 36 Ala. 728 ; Sloan v. Frothingham, 72 Ala. 589, 603 ; Holt v. Wilson, 75 Ala. 59, 66 ; Whitlow v. Echols, 78 Ala. 209; Houston v. Williamson, 81 .Ala. 482.

The only error assigned against the decree of the court below, insisted on in argument of counsel for the defendant is, that the complainant is not entitled to the relief granted, on the ground that the deed, by which she and the defendant hold the property, created in them an estate by entireties, not subject to sale for partition or division. But, as we have seen, there is no error in the decree on that account, and it is affirmed.