Jenkins v. Hall, 37 P. 62

Jenkins v. Hall

37 P. 62 | Or. | 1894

Opinion by

Mr. Chief Justice Lord.

1. Upon this state of facts the inquiry is, who inherits the land of the intestate Rebecca Jenkins,—the plaintiff, who was her husband at the time of her death, or her said brother and sisters? Our Code provides: “If the intestate shall leave no lineal descendants, such real property shall descend to his wife, or, if the intestate be a married woman, and leave no lineal descendants, then such property shall descend to her husband”: Subdivision 2, section 3098 Hill’s Code. It also provides that “when any man and his wife shall be seised in her right of any estate of inheritance in lands, the husband shall, on the death of his wife, hold the lands for his life, as tenant thereof by the curtesy, although such husband and wife may not have had issue born alive”: Section 2983, Hill’s Code. Under these provisions, upon the admitted facts, the plaintiff is heir of his wife to the land in question, and tenant thereof by the curtesy, unless he has relinquished his rights as such by force of the said clause in the deed to his wife. Whether the deed has such effect depends upon other provisions of the Code, to which we must refer. Section 2869 provides that ‘ ‘ when property is owned by either husband *86or wife, the other has no interest therein which can be the subject of contract between them,” etc.; and section 2871 provides that “a conveyance, transfer, or lien executed by either husband or wife to or in favor of the other shall be valid to the same extent as between other persons.” These provisions of our Code are identical with sections 2203 and 2204 of the Iowa Code, from which they were taken. It is a familiar rule that when a statute of another state is adopted, the decisions of that state are authority for its construction: Trabant v. Rummell, 14 Or. 17, 12 Pac. 76. In construing section 2203 of the Iowa Code, Beck, J., said: “This provision relates to the interest which a husband or wife holds in the lands owned by his or her spouse, which arises under the marriage relation. It does not refer to a property interest that may be based upon contract, or may be derived from sources other than the marriage relation. The section evidently contemplates and includes in its language the dower estate. Upon the marriage relation this estate is based”; and, referring to section 2206, which is the same as our section 2871, he further said that ‘ ‘ this provision relates to property owned absolutely by the husband and wife in their own right, and not to the interest one may have in the lands of the other”: Linton v. Crosby, 54 Iowa, 478, 6 N. W. 726.

Prior to the enactment of section 2203, the supreme court of that state had held that under an agreement to separate, a husband and wife could relinquish to each other dower held by each in the property of the other (Robertson v. Robertson, 25 Iowa, 350; McKee v. Reynolds, 26 Iowa, 578); but after its enactment the court held in Linton v. Crosby, 54 Iowa, 478, 6 N. W. 726, that section 2203 was intended to change this rule, so that a contract between a husband and wife by which each relinquishes the right of dower in the lands of the other, is void under that section. In House v. Fowle, 20 Or. 167, 25 Pac. 376, where the *87wife released by deed her dower to her husband, this construction was adopted and applied to section 2869, Hill’s Code, the court holding that such conveyance was a nullity. Strahan, 0. J., said: “This construction excludes estates or interests growing out of the marriage relation from the classes of property concerning which a husband and wife may contract with each other. They include dower and estates by curtesy. The reason of the distinction is obvious. These estates have their origin in public policy. They tend to strengthen the marriage relation, and to some extent they preserve to the survivor valuable property interests which may enable him or her to enjoy some of the fruits of their joint lives, and in a measure render them independent of the vicissitudes of fortune. ” As the husband is heir to his wife’s estate under section 3098, Hill’s Code, where she dies intestate and leaves no lineal descendants, his right to such estate grows out of the marriage relation, and, within the principle of construction applied to section 2869, Hill’s Code, is excluded from the classes of property in respect to which a husband and wife may contract with each other. Conveyances between husband and wife, intended to cut off or relinquish estates growing out of the marriage relation, are void and convey no title.

Now, the facts do not show that the plaintiff or his wife made a conveyance in respect to any estate owned by the other which arises out of the marriage relation, or that either of them undertook by deed to release any land owned by the other from any estate growing out of the marriage relation. The plaintiff owned the land in question, in his own right, and conveyed it to his wife. It is true, as part of the consideration for the same, she had joined with the plaintiff in conveying to third parties other property owned by him. But, as the land in question was owned by him, he had a right, under section *882871, Hill’s Code to convey it to his wife, and such conveyance, when made, is'valid to the same extent as between other persons; that is to say, a conveyance between husband and wife, when it concerns property owned by one or the other in their own right, is valid to the same extent as a conveyance between persons that are not husband and wife, though the grantor and grantee may or may not be married persons. As “between other persons,” a conveyance may be validly executed, whereby the grantor conveys to a married woman, an estate which excludes her husband from any participation or interest in the estate granted. This being so, the plaintiff had a right to convey the land in question to his wife as absolutely free from any right or interest of his own therein as land could be conveyed “between other persons.” If he so intended, and so expressed it in his deed, he could relinquish his entire estate to his wife, so that neither himself nor any future husband should have any estate in the land by curtesy or otherwise. As to the intention of the plaintiff by his conveyance, we think it is so plainly expressed in the clause of the deed referred to as to place it beyond controversy. By its language he has clearly manifested his intention to exclude himself, as her husband, from any interest or participation in the estate granted. His covenant is that neither he, nor his heirs, executors, or administrators shall or will at any time make or claim any right, title, or interest in or to the premises conveyed. As there were no children of the marriage, in view of the facts, only collateral heirs could have been intended by the words “her heirs” in the deed when executed. In fact, the intention of the plaintiff, as manifested by the language of this deed, and the facts stipulated, afford little ground for controversy.

3. It was argued, however, that the deed was in the nature of a post-nupital agreement, and was executed in *89contemplation of a separation resolved upon between the parties, and therefore was void as contravening the policy of the law. But the facts stipulated do not show any agreement, to which Rebecca Jenkins was a party, for separation. On the contrary, they show that the plaintiff had resolved to abandon and desert his wife, that she had joined with him in making deeds of other lands which he owned, and that, in view of this and other circumstances, he executed the deed conveying the land in question, whereby he intended to bar out all his interest, present or prospective, in the estate granted. There was no agreement for a separation. The plaintiff had determined to leave the state, and desert his wife. He owned the property, and in view of various circumstances made a deed to her of the land in question; and neither law nor equity ought to allow him, after her death, to set up any interest in the land. The judgment is reversed, and the cause remanded to the court below for such further proceedings as may be proper, not inconsistent with this opinion.

Reversed.