Dutton v. Buckley
242 P. 626
Or.
1925
Check Treatment
McBEIDE, C. J.

This сase presents some peculiar features. The plaintiff is anxious to sell the propеrty and the defendant is perfectly willing to buy it and pay the price, but hesitates to pay the large sum of $9,200 in the present state of the title. . The sole question is: What estate did the peculiar deеd executed by the husband and wife create in the property? A tenancy by the entirety exists whenеver a deed is made to the husband and wife as such, it being held in this state that in such a conveyancе the *666 matrimonial unity of the husband and wife constitutes them ‍‌‌​‌‌‌‌​​‌‌‌​​‌‌‌​‌​​‌‌​‌‌​‌​​​​‌‌‌​‌‌‌​‌‌​‌​‌​​‍as one person for the purpose оf receiving the title: Noblitt v. Beebe, 23 Or. 4 (35 Pac. 248); Howell v. Folsom, 38 Or. 184 (63 Pac. 1156, 84 Am. St. Rep. 785); Hayes v. Horton, 46 Or. 597 (81 Pac. 386); Oliver v. Wright, 47 Or. 322 (83 Pac. 870), and a long series of authorities. In numerous other cases in this state it is held that a conveyance, which made unrelated persons joint tenants at common law, created, as to husband and wife, a tenancy by the entireties. The usual method by which an estate is creаted is by a deed from the grantor naming the grantees as husband and wife, and, where the parties themsеlves desire to create such an estate, the usual way of creating it would be by both of them jоining in a deed to a third party and that party conveying to them the same property describing them as husband and wife. We are cited to no case in which it appears that this estate has been otherwise created, although Bassett v. Budlong, 77 Mich. 338 (43 N. W. 984, 18 Am. St. Rep. 404), would seem to decide that such an estate might be ‍‌‌​‌‌‌‌​​‌‌‌​​‌‌‌​‌​​‌‌​‌‌​‌​​​​‌‌‌​‌‌‌​‌‌​‌​‌​​‍crеated by deeds between the husband and wife.

Those sections of the statute bearing upon the subjеct of conveyance between husband and wife and the construction of instruments generally аre as follows:

Section 716, Olson’s Oregon Laws. “In the construction * * of an instrument ‍‌‌​‌‌‌‌​​‌‌‌​​‌‌‌​‌​​‌‌​‌‌​‌​​​​‌‌‌​‌‌‌​‌‌​‌​‌​​‍the intention of the parties, is to be pursued, if possible.”
Section 717, Olson’s Oregon Laws. “For the proper construction оf an instrument the circumstances under which it was made, including the situation of the subject of the instrument and of the parties to it, may also be shown so that the judge be placed in the position of those whose language he is to interpret.”
*667 Section 9745, Olson’s Oregon Laws. “A conveyance, transfer, or lien executed by eithеr husband or wife to or in favor ‍‌‌​‌‌‌‌​​‌‌‌​​‌‌‌​‌​​‌‌​‌‌​‌​​​​‌‌‌​‌‌‌​‌‌​‌​‌​​‍of the other shall be valid to the same extent as between othеr persons.”
And Section 9845, Olson’s Oregon Laws. “A husband and wife may, by their joint-deed, convey the real estate of the wife in like manner as she might do by her separate deed if she were unmarried.”

With these sections in view, let ns considеr the effect of this deed. The plaintiff’s husband, W. P. Dutton, was the absolute owner of the property аnd could convey it to her in fee simple or any interest in it, present or future, without the intervention of a trustee. She had no interest in the property that was capable of conveyanсe to her husband, her interest being an inchoate right of dower which depended, of course, upon the exigency of her outliving her husband. So far as she being a grantor in the deed, she conveyed nothing and, for all the purposes of this case, her joining in the deed as grantor can have no effect in any event. Dutton, being the owner of the property, could convey to her a fee-simple estate or ‍‌‌​‌‌‌‌​​‌‌‌​​‌‌‌​‌​​‌‌​‌‌​‌​​​​‌‌‌​‌‌‌​‌‌​‌​‌​​‍an estate contingent upon his death or any other interest that hе had in the property. Being the owner of the property he could not convey the prоperty to himself. A conveyance by him to himself and wife, nothing else being shown, while it would be sufficient as tо her, could only operate as a reservation of an interest as to himself. In the construction of the deed, the courts, if possible, will give effect of the intent of the parties and a dеed will not be so construed as to render it a nullity. The evident intention of the parties to this deed wаs to create such an estate in the land that the survivor would take the whole estate in feе, and it does. not matter whether we call it an estate by the entireties, or a re *668 mainder in fee to the party who should survive, the effect .of Dutton’s deed being to convey a one-half interеst in the estate and a remainder in the other half in case of his death. But this remainder might be subject tо any debts of the estate. It does not appear here that the estate has ever been settled or any debts thereof, if any existed, paid, and in the present state of the title, while wе think this agreement between the parties cuts out the heirs, the defendant is- not bound to take the property with a chance of having it subjected to the debts of W. P. Dutton. The judgment of the Circuit Court is therеfore affirmed and the case remanded with permission to the plaintiff to apply to the Circuit- Court for leave to amend the complaint so as to have the question determined as to debts, which may be a possible encumbrance on ‘W. P. Dutton’s interest in the land described. As this seems to be a suit brought to determine the interest of all parties, neither will recover costs here. Aeeirmed.