Hayes v. Horton
46 Or. 597
Or.
1905
Check Treatment
Mr. Justice Bean

delivered the opinion- of the court.

1. There is a conflict in the evidence as to whether defendant furnished the money with which to purchase and improve .the property; in dispute, or whether a part of it was provided by the plaintiff, but that question is really immaterial. It is a general rule of law that where the purchase price of land is paid by one person, and the. title taken in the name of another, the grantee will hold it in trust for the person furnishing the money, even without a declaration to that effect: 2 Story, Eq. (13 ed.), § 1201. But this rule does not apply to a purchase by a husband in the name of his wife, or by a parent in the name of a child. In such case the. presumption is that the purchase money was intended as an advancement or gift, until the contrary is established by the evidence: 2 Story, Eq. (13 ed.), § 1203; Welton v. Divine, 20 Barb. 9; Guthrie v. Gardner, 19 Wend. 414. If, therefore, it be assumed, although not clearly shown by the evidence, that the purchase of the property and the improvements thereon were made with the defendant’s money, there can be no resulting trust in his favor on account thereof, because there is no evidence to overcome, the presumption that it was intended as a gift to her. Indeed, the testimony on this point tends to show that plaintiff was to be joint owner of the property. She says that it was understood at the time the deed was made that she was to have a one-half interest, while the defendant testifies that there was no understanding about the title, and that his claim is based on the fact that he provided the purchase money. We are therefore of the opinion that there was no resulting trust in favor of the defendant.

2. We are further of opinion that by the deed Horton and the ' plaintiff became tenants by the entirety: Noblitt v. Bebee, 23 Or. 4 (35 Pac. 248); Howell v. Folsom, 38 Or. 184, 187 (63 Pac. 116, 84 Am. St. Rep. 785).

3. There is some conflict in the decisions as to the effect of a divorce upon estates by entirety, but the weight of authority is *600that it destroys the unity of husband and -wife and s^vefs' such estate, making them thereafter tenants in common:'^ Bishop, Mar. & Div. (5 ed.), § 716; Freeman, Co-Tenancy (2 ed.), § 76; Stelz v. Shreck, 128 N. Y. 263 (28 N. E. 510, 13 L. R. A. 325, 26 Am. St. Rep. 475); Russell v. Russell, 122 Mo. 235 (26 S. W. 677, 43 Am. St. Rep. 581); Hopson v. Fowlkes, 92 Tenn. 697 (23 S. W. 55, 23 L. R. A. 805, 36 Am. St. Rep. 120). At common law, husband and wife were regarded as one person, and a conveyance to them by name was in effect a conveyance to a single person. By such a conveyance 'two real persons took the Avhole of the estate between- them, and each -was seised of the whole, and not of any undivided portion. When the unity was destroyed by death, the survivor took the whole of the estate,' because he or she had always been seised of Ihe whole thereof, and the other had no interest which was devisable. But when the unity is destroyed by a decree of divorce, leaving both spouses surviving, the only logical conclusion ia that they thereafter become tenants in common of the property, -bebause' there are two living persons in whom the title rests.

4. The deed from the plaintiff to Williams, made about the time of the commencement of the divorce suit, did' not change the status of the property or the rights of the parties. It was probably intended only as security for professional services, and the. title reinvested in the plaintiff immediately after the decree.

5. A contention is made that the complaint does not state facts sufficient to constitute a cause of suit, because it is mot alleged specifically what interest or estate the parties had in the property^, but this question was waived by confessing that a demurrer to the complaint was not well taken, and by answering over.

It follows that the decree of the court below must be affirmed, and it is so ordered. Affirmed.