*1 620 Schafer v. Schafer.
lection premiums. It was error to allow plaintiff attorney’s fee. judgment of the Circuit Court modified out
striking the allowance of all attorney’s fee, affirmed in all other respects. Appellant will recover costs in this court. Modified. C. J., JJ., concur.
Rand, McBride Brown, Argued April 7, re-argued June modified October defendant’s motion for costs denied October 1927.
JEAN SCHAFER v. JOHN SCHAFER. 206.) Tenancy by Entirety Tenancy is Transmuted into in Com- Divorce— bymon Divorce Decree. 1. A by entirety by divorce decree operation ends an estate law Husband and tenancy it transmutes into a in common. Conveyance to Husband and Wife at Common Wife— Conveyance Single Law was Considered as Person. law, conveyance 2. At common to husband and wife was in effect, conveyance single they to a person, since were considered person. as one Law, Husband and Wife—At Common on Death of Either Husband by Entirety, or Wife Seised Estate Survivor Took Whole of Estate. By conveyance 3. wife, common-law, to husband and of an by entirety, persons two real took whole estate between them, and, unity by on death, destruction of survivor took whole estate. Tenancy by Entirety cannot be Partitioned. Partition — by entirety dependent 4. Estate marital relation of the partitioned tenancy by and cannot cotenants while the entireties 1. entireties, Effect of divorce on see notes 1102; 536; in 4 Cas. 333; Ann. 5 Ann. Cas. R.L. A. 10 L. R. A. ' S.) (N. 463; 1915C, See, also, L. R. A. 396. 13 R. C. L. 1121. tenancy by 2. entireties, Nature and creation of see *2 may decreeing 511, L., 5. on divorce Under Section Or. property as defendant off third in such seize and cut a owned at of time decree. Estoppel Claiming on Claim must Found Under Instrument —Person Repudiate Adopt Features Whole and cannot Favorable Those Adverse. with- person instrument A or other 6. cannot claim under deed can- confirming it, his on the whole and out but must found claim adopt repudiate another feature him not which favors feature which is adverse. Tenancy by Entirety Divorce into Divorce—Since Decree Transmutes Tenancy erty Authorizing Prop- Common, Law Distribution Inapplicable L., (Or. §511). Held tenancy by operation 7. Since divorce of law ends a tenancy common, 511, and transmutes it Section into L., relating property, inapplicable Or. to distribution of would be a case. such Equal Spouses by Entirety Division Between of Estate Divorce— Proper. Though by entirety subject partition, 8. an not estate an spouses equal proper. division between During Spouse Coverture has Estate Neither Husband Wife— by Entirety. of Inheritance in Estate during spouse, coverture, Neither has an 9. estate of inheritance by entirety. property held as estate Property Distribution on Divorce Held to Divorce—Statute for L., Import Conveyance (Or. §511). Title Fee 511, L., providing for distribution 10. fee,” clearly imports “in decree, use of words conveyed. an third of is to undivided one title in fee Spouse, Deceased was Tenant and Wife—Heirs of Who Husband Belongs Inherit, Surviving Entirety, Spouse. but Do not Whole by entirety, spouse holding heirs of estate On of either 11. death estate, belongs any such but whole inherit do deceased surviving spouse. 622 v. Decreeing by Entirety Divorce —Court Divorce of Tenants cannot Convey Property to Wife One Third in Fee. rendering 12. spouses Court holding divorce of
by entirety convey cannot to wife one third of in fee or inheritance, estate of since husband has estate of inheritance in property parties by entirety. J., Curtesy, p. 433, 17 C. n. 54. Divorce, J., 19 p. 180, New, n. 28 p. 181, 53, p. 182, p. 358, 56, C. n. 65, p. 47, 334, p. 53, p. n. 335, 345, 35, p. 32, n. n. 356, n. n. n. 61. J., Dower, p. 504, 19 C. n. 71. J., Estates, Husband p. 922, 46. n. C. J., Wife, p. 507, 54, p. 36, p. 555, 556, C. n. n. 565, 37, 563, p. p. 564, 66, 68, 19, 67, p. n. n. n. 70, 71, n. 69, 72, 75, p. 567, 74, 11, 12, p. 69, p. 571, n. n. n. 70. Cyc., Partition, p. 181, n. Cyc., Taxation, p. 1565, n. 39. Cyc., p. Trusts, n. 22. From Multnomah: Judge. Robert Tucker, In Banc.
Modified. *3 For over name appellant there a "brief Simon, Freed, & Gearin, Humphreys Messrs. with an Mr. Lester W. Humphreys. argument by oral respondent there was a brief over For name of & Messrs. Senn with an Recken, argument by Mr. oral F. S. Senn. is suit for divorce. J. This The trial
BEAN, plaintiff court rendered favor granting from and also decreed a divorce the defendant her minor have care and two plaintiff custody Donald Schafer aged children of the then parties, aged months, giv- and Robert Schafer thirteen seven the chil- the defendant privilege visiting ing that defendant sum providing pay and dren, month maintenance of children per for the $100 Oct. Schafer 1927.] years; eighteen age when they
until arrive at age re- be sum to said Donald Schafer arrived at that paid per until and that sum to month, to $50 duced eighteen, age when reaches Robert shall cease. same provided, wit: decree further to plaintiff of a one- the owner “And whereas, prem- following half interest ises, in and to described Ey2 in9 block of lot 8 and the to-wit: Lots and King’s Multnomah Portland, Addition to Second County, Oregon. defendant Whereas, whereas, one-third therein; and owner interest of a one-half of an undivided defendant is the this interest to-wit: West one-half owner following estate, described and to (2) three two lots Multno- (3), Portland, Addition to Block Couch County, Oregon; mah Adjudged is further “Now it Ordered, Therefore, hereby plaintiff to declared and the Decreed, interest in and owner of a two-thirds
be the property, following to-wit: described eight (5) (8) East one-half and the “Lots five (9) King’s to Portland, Addition Second of Lot nine Multnomah. Adjudged is further “It Decreed Ordered, hereby be the declared to be and she is (1/9) in and to fol- interest of one-ninth
owner premises: lowing described (2) (3) two and three one-half Lots “The West City of Portland, Addition
in Block Couch Oregon; Oregon, County, Multnomah give being herein “It the intention of the court statutory plaintiff her in all of the this of the defendant. real estate *4 thereto court decrees that “In addition by right virtue of a in her own deed of
conveyance, in and the owner of a one-half premises, following described to-wit: (5) eight (8)
“Lots five and the East one-half (9) (9), King’s of lot Block nine nine Second Addi- Oregon.” County, tion Multnomah to Portland, appeals. Defendant reply
In brief we find it “One stated, defendant’s question presented by only is this brief. this: It is power What has the court under Section 511, L., by entirety.” to divide an estate It is contended appellant by on behalf of the that an the en- estate tirety provision does not come within the of Section 511. present
1. In the case the owned Schafers certain entirety. gave as tenants The court operation By the wife a divorce. of law the divorce entirety decree ended the and transmuted it into a tenancy Marriage in common: 2 p. Schouler § apparently Divorce, The trial court treating though estate as it were pro the Schafers as tenants in common, give ceeded the decree to the wife one third up defendant’s one half of the which, to that and at time, and until time, the decree had been operative, rendered and became had been an estate question considering 3. In this there are a few may helpful which settled rules to notice. The husband and wife were considered at common law person conveyance to them in was, effect, conveyance single person. By conveyance to a entirety, them of an persons two real took the whole of the estate between them, each was seized of the whole and not por undivided unity destroyed by tion. When death survivor took the whole of this estate, because he always she had been seised the whole thereof and *5 v. Schapee 625 "When was divisible. interest which had no the other leaving destroyed by divorce unity is by spouses surviving, Mr. former as stated both Hayes 600 Horton, Bean in Justice 386): ‘‘ they only logical thereafter that conclusion is property, because became tenants they common of the living rests.” persons the title in whom
are two has far declared, case the law is so In that noticed will be state. It become settled in this regard spouses there- is declared that to both it they tenants become after after, divorce, is, They property. tenants not were common of prior the rendition in common of the only tenants became such the divorce decree, operative. became after the was rendered and agreed of a the effect The courts are as to not ques- by entirety, but the estate ed.), tion is rest set in this state: Sehouler §568. page
As in 30 564: J., stated C. by “An held defined an estate entireties acquired by virtue title husband and wife jointly marriage. peculiar them after is a generis species anomalous estate. ancy. It is of ten- a sm by The essential characteristic of an estate entirety spouse or is that each is seized of the whole moiety, of a divisible share, not part. my. per per Bach one seized non There tout et contemplation but is held it is estate, and, law, person. But while tenant the en- yet tireties entire where estate, owns the is owned it greater quantity any in fee it than other During spouse neither estate in fee. coverture has an estate inheritance in as an estate 122Or—40 v. Schafer.
by peculiar None of incidents estate rests upon any ground public policy.” ‘ ‘ The death one tenant entirety terminates the estate, an;d, weight the same authority, result follows from an absolute divorce.” C. J. 567, 100; Kent, §
2See
on
&
Bishop Marriage
1651;
Divorce,
1650,
§§
19 C.
Van
§453,
Stout v.
J.,
p. 182;
109
Zante,
Or.
430 (219 Pac.
McKinzie,
220
Pac. 414); Chase v.
804,
81
429 (59
1025); Alles
216
Pa. 604
v. Lyon,
Atl.
9
(66
S.)
Ann. Cas.
10 L. R. A.
81,
137,
(N.
463,
Reed v.
and
109
Reed,
(72
Md. 690
Atl.
note);
414,
Mansfield,
Palmer
Rep.
Am.
v.
552);
St.
Mass.
E.N.
Ades
L. R. A.
(110
677);
1916C,
Atl.
Capian,
4. Estate by entirety dependent for its creation and also continuance for its marital upon the relation of the cotenants. While the tenancy entireties can continues, partition but after the ten made, been has converted in ancy tenancy into common by destruction peculiar of its and essential unity of persons it may like other tenancies common be partitioned. Freeman and Cotenancy Partition, §
5. The divorce destroys unity of husband and the unity of the wife but the entirety up equals made as the foundation thereof, and as the husband wife, regards property, stood upon equality an before rendition of the the law operation of after divorce they become tenants in common of the property.
L., provides as follows: v. marriage dis- declared void or shall be “Whenever a prayer party shall such decree whose at solved, the undivided entitled to in all cases be be made shall right the the in fee of or her individual his third whole time of such other at real estate owned further addition decree, it provided 513; section for maintenance for duty cases to in all such court shall be the enter provision.” this with in accordance a decree provisions sec- this Under virtue ai\d may third interest cut off a tion the seize time in such as defendant only power from drawn decree. This contemplate does the statute. statute marriage, successfully dissolve shall tenancy change in com- estate from party’s upon share then seize mon and tenancy give thereof to third common, legal a fixed effect The decree has other. *7 by entirety, namely, to it into transmute the give
tenancy does the The statute not in common. legal power declared effect of the court seize to change legal effect. mutilate or that its decree and legislature apparently that did not is true the entirety by in when the mind Section estates have appears only This enacted. from L., Or. by comparison language section itself but the legislatures by provisions in other states made with disposition govern entireties divorce the of to decree. among old rules, the found, effect,
6. There is party must that a have become axiomatic, which contradictory positions and not consistent language quote the of Ken he takes. Lord which yon, To hot and cold” at the same he not “blow must important applications of One the most time. a right endeavors to establish where a party rule is implication under one or provision or himself, title or contra- instrument, ignoring of a deed or other is de- which implication another or provision dicting fatally repugnant. According or structive a person which rule, applies deeds, reason of confirm- under the instrument without claim cannot whole his claim on it. He must found ing makes or which feature adopt operation cannot con- time repudiate at the same or in his favor and or which adverse operation feature tradict another N. Miller, Mich. W. Jacobs to it. of authorities. cited a wealth there is where 42), authorities do we find where In cases none with an estate has dealt of divorce special authority statute entirety except by regard provided In Oregon nothing state. In this divorce. a decree of rendering entireties discretion to real property. is no state there a one- the decree party obtaining must give of the real less, prop- “in no more, third part fee/’ at fault time of party erty decree. of a seem effect It would changes an estate by force law which but in common is the work tenancy distribution equitable legal prop out of a
ing the existence during divorced spouses erty understand, relations. as we Such, marriage of their purpose object L., and the divorce matter, determined having law *8 accomplisheld into effect and the having gone held the real the property by disposition equitable 511, L., there is no room for entirety, applicable. it is not In other words, function. 629 v. spouses one give the may one of well first We then by other property the owned the third of ap- remaining thirds in two third of the one divisions make two as to plication statute, attempted question, manner property in the dividing estate first, trial court; the decree granting one third of the wife then in moieties and belonging the husband. half the one Except correction of such enforcement for the entry divorce final dercee decree, jurisdiction of the terminate would a vincule suit subject and over matter of the suit, over respect parties involved therein: all matters p. Marriage § 1740. and Divorce, 2 Schouler present declared, court first case the trial 8. In the defendant each that the effect, entirety. That held half of the proper effect announcement declaration was juris terminated the decree of question. property in over the the court diction of partitioned first the decree effect, In entirety An estate held partition: (6 ed.), p. subject 2 Schouler spouses equal between § division the proper: An an 19 has been J., C. estate Mich. p. § Jeske, N. Jeske W. 335, 776; remembered that should be 9. It acquired by prac question hard work all economy by parties during their married tice of spouse During neither their coverture had an life. property held as inheritance in the estate entirety: 30 C. J. Roulston 565; Hall, Ark. Rep. 97). Am. St. S. W. *9 Schafer v. Riveting language 10. onr attention to the of our the words “in fee” statute, 511, used therein clearly import in virtue such title in fee cases, the of an undivided one third of the property conveyed. Thomp Thompson is to In 1190), 79 Or. son, held 513, this court signify “in the words fee” used in statute Dict, Citing an of inheritance. estate Bouvier’s p. & Law, Words 766; Phrases, spouses 12. In case of the death of either of the holding entirety, an estate the heirs de part ceased would inherit no held entirety, belong but the whole would to the surviv ing spouse. rendering The court the decree of convey part could the wife a one-third fee,” “in anor estate inheritance, simple for the reason that the husband had no estate parties by of inheritance in the held higher A stream cannot rise than its quote opinion from source. We case of Roulston 66 Ark. Hall, S. W. Rep. 97), very point: Am. a case St. much in species “An of inheritance estate is ‘a of freehold otherwise land, estate called “fee” where only enjoy entitled to tenant is not the land for his where, own but after his life, death, it is cast persons successfully represent him who law right perpetuum according blood, to a certain Steph. Comm. order of descent.’ 1 established 218; Dictionary, § 51; Litt., Co. Black’s Law 436, ‘Estate of From Inheritance.’ these definitions it seems that an by entirety cannot be estate of inheri- tance.” In that state statute that where a directed granted to the
divorce was wife she should be en- titled mter alia to a one-third of all the lands, 63Í v. Schafeü. in- an estate seized of husband her whereof marriage re- unless during her life, for heritance chancery a divorce linquished. The by her property held half of the wife one awarded and one third husband and her Supreme held that Court life. other half for her *10 in inheritance these “had estate of the husband not an ineffectual. former decree and held the lots” upon estate held tax is due “No succession upon under of one tenant death entireties passes imposing estate which a tax statute ” Thus, regulating succession.’ intestate the ‘law holding syllabus in Palmer which shows read the L. R. A. 263 N. E. 283, Mass. v. Mansfield, p. case it held: In that was 677, note, 1916C, “Upon in the the testator no estate the death of passed question property longed be his widow. It tenancy by when the her from the time entirety event that survived created. In the she was title his she took no new her death husband, survivorship, under 'deed virtue of held but originally Cyc. seized of whole. which was she Prop. (6 ed.), §912; Real En 1 Washb. 1198, 1199; yeart Kepler, N. E. 118 Ind. Am. St. Rep. 94).” the curtain decree was of the rendered,
When parties rung marriage between the was relations spouses was of the thereafter en- and neither down, any property of the other. titled authority change decree or had court The rights existing after of one the decree, other. favor of the persons unity severed of the then anid
The rights unity former ceased to exist. The her former make no claim as the widow of wife could curtesy spouse male would have no husband and the wife. land his former lower should modified so The decree of the provisions granting plaintiff a as to eliminate the half one-third interest parties by before the divorce. respects In other is so ordered. the decree is affirmed. Modified. C. JJ., J.,
Rand, Brown, and McBride concur in opinion. foregoing did not sit in the ease. J.,
Rossman, given plaintiff divorce from custody of the the care minor defendant, aged respectively children of defendant years seven and thirteen months at per date support alimony, month and for the decree, $100 and maintenance'of said children until children said eighteen years. age of arrive at the The decree also *11 provided that the first of installment should be $100 July paid by the on 1, 1924, defendant and a in- like every the first of each and stallment of month $100 age thereafter until said minor children reach the of eighteen years; that child the older reaches the when age eighteen years of the amount should be reduced paid month and to should be until said $50 $50 the eighteen younger age years. reaches of child the The gives plaintiff further decree to the a one-third in- in the real terest of the defendant. One tract of involved is described ás 5 and lots Kings 8 and the one half 9 in east of lot Block County, Second Addition Multnomah Portland, Oreg’on, plaintiff was owned the and and defend- ant as tenants the The decree declares v. Oct. 1927.] plaintiff owner of half of that tract to be the the other one- her interest of the and awards one-third belongs defend- the to the half which decree declares assign- appeals from The ant. defendant plain- ing granting to the of the divorce errors asserting should have that the of tiff, given claims also that the been defendant, to unjust plaintiff was excessive, allowance made to contrary to all evidence. careful J. From a consideration COSHOW, presented appeal, testimony we on the the briefs supports opinion the evidence are of the learne|d judge Circuit decree rendered profession It benefit or Court. would be testimony any person other adduced. set out ground alleged complaint and answer The both allegations inhuman The is cruel and plaintiff treatment. conduct of the defend- were sustained. The feelings arbitrary, ant inconsiderate of the plaintiff brutal. De- in two three instances plaintiff doubtless ren- fendant’s treatment of plaintiff and burdensome life of miserable dered the meaning terms as used within the those statute. seriously contended that the erred giving plaintiff custody two They young the care of their
children. are and need prove attempt mother. There was no any degree unfit have the care and mother was to attorney custody of children. learned for the conceded that defendant at the trial though the care the children even should have *12 granted defendant. divorce was seriously part on the of de- It contended supplied money for inasmuch as he that fendant v. Schafer. purchase lots of the above referred described, and testimony Irving Apartments, to in the as the finding plaintiff erred in in her was owner right urged own of one half thereof. It appeal defendant on the that the court should belonged property have found defendant that the price purchase because he furnished which has all the paid property. been on the as arose Some contention to whether or not trial a the court could inquire suit for divorce real into the title of the property Conceding involved therein. without decid ing that the have title to the could been properly dispute, determined is in where the same we that the is correct in that it declares believe plaintiff be the owner half thereof. of one purchase price, fact that furnished the tak defendant ing the title in name himself and wife, does plaintiff’s destroy therein interest because proceedings. given If the defendant had liberty property to wife entire his he would not be successfully to reclaim the title or to claim the title procure pre his because wife seeks to divorce. The sumption gave Hayes he to her: 386). presump Horton, Or. 597 That tion has not been overcome. The evidence does not acquired plaintiff any show that that title unfair voluntary gift her means. from defend Conceding ant. earned thereof her services wife of the her title defendant, though is as secure valid as to that she paid a valuable had consideration therefor: Reed v. Rep. 109 Md. Atl. Am. St. Reed, n Another very interesting question the de- involves of divorce termination effect *13 635 Schafer v. Schafer. the party by property in fault in .husband ably dis- very question That wife the is it his behalf In cussed in the brief of defendant. title the upon operates decree of divorce urged that a instant to stood at the it both the decree to the time of Up was granted. Each involved. real property owned parties of sur- right subject to whole thereof change to A 'divorce vivorship. operates decree of in common: to an estate tenancy by entirety Hayes Horton, 386). Or. Pac. v. 46 600 (81 shall declared void
“Whenever be marriage such shall at party prayer whose dissolved, in all cases be undivided made, shall entitled third fee right in his or her individual whole of the real the other estate owned at time such further in addition to the decree, * * ” for maintenance for in provided 513; . Or. §L., is certain of the decree in the time
instant a tenant case defendant was the owner as inter Apartments. His Irving convey in that to sale subject est was subject survivorship him in his right ance Folsom, Howell v. 184 Or. Pac. 116, wife: Am. He could also Rep. 785). have encum St. Hayes Horton, interest in that property: bered his v. subject above. His interest was judgment issued against sale on execution Ohmart, him.: Ganoe v. Or. therefore, irresistible it conclusion, L., under Section 511, duty third of defendant’s
award said Mr. Apartments. aptly As was said Irving Hayes Horton, above: Justice Bean destroyed unity “But when the decree of spouses only leaving surviving, both divorce, logical they conclusion is that thereafter become property, tenants two common because there are living persons in whom the title rests.” only equal Their interest was not identical but prior to decree. Each was entitled half to one *14 profits property: of the and rents of issues, v. Ohmart, Ganoe above.
By plaintiff the terms of that statute the was right entitled to in her one-third individual Irving Apartments of fee because the defendant owned that real at the time decree was dispute rendered. Defendant does not that he property. contrary On the that he insists that he By operation upon all. owned it of law dissolution marriage plaintiff of the contract the defendant Irving Apartments became the owners of as plaintiff in common. Under the tenants statute the by operation of the decree of became, divorce, the Irving in fee owner of the one-third interest in the Apartments belonged which to the defendant at the But the divorce. that time half of under virtue of said Section plaintiff. 511 became the So plaintiff’s ownership Irving Apart- one third operate only ments could the one half owned by after the defendant divorce. The Apartments Irving title to the other half of the be- plaintiff ing not affected the one third entirety whole an estate becáuse fee in one half' thereof entire was vested plaintiff by marriage dissolution of the contract. Designating plaintiff the interest of in defendant’s ownership Apartments Irving is therefore a v. computation. “Things equal to the mere matter of equal thing In no other each other.” same are obey way said mandate of can the argued neither nor defendant It was Apartments Irving the title but thereof owned the status. claimed that this vested in the marital corporation. analogous This marital to a status It is not analogy decisions. has used in some been corporation in a however. A stockholder accurate, mortgage property belonging to the cannot corporation. convey any, if interest, cannot his
He corporation. property belonging in the real corporation property belonging is not The real judgment subject or execution attachment owing by the collect debts stock to secure or qualities, however, All elements holder. are these Hayes jurisdiction: this Howell v. Folsom, above; Ganoe Horton, above; above. Ohmart, jurisdictions
Different
have made such different
*15
applying
by
decisions in
the law
the
as to estates
entirety
jurisdictions
that decisions
other
are
from
helpful
disposing
instant
not
the
case. Arkan
Pennsylvania
sas and
both hold that a divorce does
by
entirety:
sever
not
estate
the
v. Hall,
an
Roulston
(50
Rep. 97);
Allen
thus if decision of Ar- kansas should be followed in this state get in the instant defendant’s case would large part property. interest his real We permitted, Michigan, are as is court not equal equitable prop- make an real division of the spouses erty between when a divorce decreed. requires apart The statute set spouse prevailing undivided one-third interest offending spouse: fee in all real of the spouse 4 Or. 30. The innocent Bamford, Bamford acquires title to one-third interest in the spouse by offending virtue of the decree. The requires granting enter the court to statute prevailing party one-third the real other. The statute, however, self-operating. Before the court can effect the trans- *16 property interest one-third real be- fer property longing party must fanlt real to the at may be specifically the same described so he ais itself from decree. The decree identified Gustin, of title: Gustin 79 Or. muniment 370); 72 Or. Perkins, Pac. Perkins v. discretion in has no The court property Awarding real matter. third of the one party party as much fault the other is to spouse offending imposed upon penalty it as spouse. pre The statute an the innocent award to property arbitrary scribes an division of regardless mandatory provision or this of whether equitable just court. or to this not the division seems tenancy by the is severed In this state the automatically by of divorce. No required court is order order on the spouses tenants in common as to the create the property of the decree as real owned at the time entirety. very The instant the decree tenants spouses granted of divorce become tenants formerly property comm on as held as tenants lapse time There is no whatever metamorphosis. The decree how- court, in the spouse awarding the innocent in- one-third ever, offending spouse the real terest divorce. decree of follows the authority has spouse give land of to take the one it except as an incident to the divorce. another, granted give divorce is court cannot Until a spouse undivided one-third interest in the consequently spouse; of the other when real plain- instant case decreed in the that the the court interest one-third should be awarded property tiff operated defendant, that award real on the defendant’s *17 Schafer. Schafer prop- owned the The defendant tenant in common.
a erty The decree divorce decree. at the time of the interest or take from did not add to defendant’s equal spouses property. were owners The real that equal entirety. They owners the are the in common. The decree of thereof as tenants tenancy merely changed law the the virtue of plaintiff title to defendant held and which the ownership change property. the real It did not the third of all. court awarded one Hence when the plaintiff part that defendant’s real to operated estate of defendant on the the tenancy by en- in common. The tenant a tirety of divorce. had severed the decree been plaintiff very instant That defendant be- common. The decree of divorce it- came tenants quantity diminish either or increase did not self title or duration defendant’s to real involved. marriage is ‘whenever shall be “It declared dis- operates, statute solved’ before, —not pendente Hie, the court then becomes authorized —and ‘duty’ it ‘to enter a is its decree’ for the un- in fee divided one-third of the whole ‘owned
real estate the defendant at the time of for such decree’ divorce. primary must manifest, then, “It be ob marriage ject suit is affect to relation,— specific it is the status,
its
matter
in con
—that
only
troversy and that it is
affected,
when the
changed by
decree of
divorce that
status is
statute
operates
to divest title ‘owned’
de
duty
.then becomes
and that it
fendants,
court
provi
with its
enter a decree
accordance
defendant *18 an either had estate Whether or not estate. or survivorship a sever- depended upon inheritance When the estate by ance divorce both was severed became by in Duration common fee. in quantity tenants from the deed them from their estate comes to Supreme decree. was said Court As Massachusetts: death of testator
“Upon the no estate in the passed his widow. question in to be her from the when the to time longed tenancy entirety was created. In the sur event she her his death she took new husband, vived but held under deed survivorship, title whole, virtue which she was seised 21 Cyc. 1199; Prop. (6 ed.), §912; 1 Washb. Real. 1198, Enyeart Kepler, N. E. 10 Ind. 539, Palmer L. 1916C, R. A. 678)”; Am. St. Rep. Receiver-General, Treasurer and 222 Mass. 263 (110 283, L. R. A. N. E. 1916C, award plaintiff court one
Before could in real in third of defendant’s interest in east half of and 8 and the Lot 9 said lots it Portland, Addition must have 9, King’s Block a instant granted divorce. That plaintiff very fee. tenants in common in court became The they had no discretion obeyed and must have Section then
122 —il v. plaintiff by awarding interest one-third L.,Or. half said fee in defendant’s undivided property. controlling real if time is factor So that a position defendant’s be sustained. Before cannot plaintiff the court award an in de- could real fendant’s she must been decreed have a divorce. That instant defendant became an owner property. By of an half of virtue undivided the real duty Section 511 it was the of the court to said award one third undivided of defendant’s expression, half. said fee” “in significant. legislature is not The intention of the give party was doubtless to the innocent third of the whole of the real estate the other spouse offending the time of such decree. If the give owned less than a fee the court could not spouse prop- innocent a fee. are There titles erty which are less than fee. There con- are base, qualified ditional and fees: C. J. It cannot be contended that because award cannot spouse simple the innocent fee that the court should not award third undivided in- whatever *19 offending spouse opinion terest the owns. our is prevailing “in party that fee” the words refer the losing party and not to the interest the had in the legislative property. real The intention was part prevailing party award third the property may real other’s whatever interest that be qualification and without reservation. It cannot justice opinion be that the learned who wrote the Hayes above, Horton intended that the words prop- “thereafter become tenants in common of the erty” literally construed should be where wrested was their context. That case from heard some time after the decree divorce was rendered. was He Oct. 1927.] operated the considering the decree time
not property Disposition property. was real real of the a divorce The divorce suit. effect in the not made inde- entirety in an determined on an opinion that pendent is The suit. essence automatically into transmitted estate is There of divorce. common a decree an estate in between the can interval of time be no The estate. and the transmutation of prevailing statute the court to award commands party real third of the whole of obey omit mandate and that of the other. We cannot parties as tenants Complaint defendant because also made plaintiff maintenance court allowed the for parties sum of $100 minor children of the of the substantially per that of the fact month. In view his the defendant all of the apartment for allowance houses, interest in two large. Plaintiff allowed seems was not maintenance per any alimony allowed month other than the $100 the children. maintenance and for education plaintiff owns result of the The Apartments Irving de- and the thirds two plaintiff owns one one third thereof. fendant Apartments and the defendant Arline ninth of the Defendant owned one-third ninths thereof. two owns Apartments. connection, In this Arline in the remembered it must be however, years, many to earn least for able, will support money support for her own small to too children are minor children. The two of their and nurture be without the constant care entire time mother. devote his Defendant can *20 Ring. Or. State earning money. legally support He bound Ms children. The welfare of the infants in eases of this importance. Mnd is of first We are therefore con- plain- strained not to disturb made the allowance support tiff for the children. If cir- future require cumstances respect, modification of the decree in that always liberty defendant will be at to make application to that end. should be affirmed. J., concurs
Belt, foregoing opinion. Argued July 5, September petition affirmed for writ of error 27, 25, allowed October v. F. M.
STATE RING. 780.) Judges Prejudice Change Judge to Secure Piled —Affidavit Thirty-nine Days Arraignment Guilty After and Plea of not Notwithstanding Subsequent Held Too Late Withdrawal of Plea Interposition L., (Or. 2, of Demurrer as Amended § 45 — p. 1925, 218). Laws 2, L., 1. Under Section as amended Laws of 45 — page requiring by party moving change affidavit judge for any prior day to be filed at time action, thereto or within one after question fact, affidavit, thirty-nine is at issue days such filed arraignment plea guilty, late, after of not was too although plea subsequently interposed. withdrawn and demurrer Attorney may Appoint Deputies Criminal Law —District and Permit Other Counsel to Assist Him. attorney may abrogate 2. District his negleet office or his duties, may but he appoint deputies official permit other counsel to assist him. Attorney’s Permitting Criminal Law —District Other Counsel Violating Him Assist in Prosecution of Pilot Statute Held not (Or. L., to Constitute Reversible Error § attorney’s permitting attorney 3. District another to assist him prosecuting pilot, L., piloting under Section for foreign license, vessel without state did not constitute reversible error. notes Rep. 269; 377; Am. R. 18 Am. Dec. See, 30 L. R. 306. also, A. L.C. 1108. 4. Partition between entireties, tenants see notes in 30 335; R. 42 L. L. A. See, also, R. A. 98. R. L.C. may be tenancy in common it continues, into conversion but on its partitioned. may Decreeing One Statute, Divorce Seize Court on Divorce—Under L., (Or. Property Decree at Time of Third Defendant Owns §511.)