| Kan. | Jan 15, 1889
Lead Opinion
The opinion of the court was delivered by
The only questions presented in this case are with reference to the character of the title, interest and estate conveyed by Abner Shinn on April 17,1882, to his son, Eugene F. Shinn, and to his son’s wife, Ella Shinn, and whether such title, interest and estate have since been forfeited and lost, or not. It is not claimed in this case nor even pretended that Abner Shinn did not have the power to convey tó his son and to his son’s wife any kind of estate, interest or title in or to the land which he might have chosen to convey, for he held the whole- of the estate and a perfect title, and could convey just what he chose. The questions presented, however, are these: What did he convey, and has the same been forfeited or lost ? It seems to be admitted that Abner Shinn conveyed or transferred to his son and to his son’s wife an interest of some kind in the property in question for the period of ten years, subject to a condition subsequent, and conveyed to them the full and complete title and estate forever afterward, subject to a condition precedent; but it is claimed by Abner Shinn that these conditions were afterward brought into existence, and that they so operated as to
As long as the wife lives the property cannot be legally seized or sold on execution for the husband’s debts; nor could the purchaser, if the property should be sold, take the possession of it, for the wife has the exclusive right to the possession thereof, and to the use and control of the same, except as against her husband alone, who has a like right to the possession, and to the use and control of the same. But it may be claimed that as the husband has an equal interest with his wife in the property, and that as he might possibly outlive his wife and become the sole owner, the judgment should be considered as attaching to that possible contingent interest, and constituting a lien or incumbrance thereon. But this cannot be true, as will be seen from an inspection of the following authorities: Davis v. Clark, 26 Ind. 424" court="Ind." date_filed="1866-05-15" href="https://app.midpage.ai/document/davis-v-clark-7037211?utm_source=webapp" opinion_id="7037211">26 Ind. 424; Chandler v. Cheney, 37 id. 391, 414; Patton v. Rankin, 68 id. 245; Thomas v.
But we have not yet mentioned all the difficulties. A judgment lien operates only to prevent the judgment debtor from disposing of or incumbering his property so that the judgment cannot be enforced as against the property, and to prevent subsequent lien-holders from taking the property in enforcing their liens. Now as the property is held in entirety by the wife as well as by the husband, he could not and cannot alone dispose of it or incumber the same, even if the supposed lien should have no existence. Hence there is no room in this respect within which the lien could operate; also, as the property is held in entirety by both the husband and wife there is no separate estate or interest in either which could be levied upon, and unless the property is levied upon within one year after the judgment is rendered, the lien ceases to operate or to have force as against all other judgment creditors. (Civil Code, § 468.) Hence in this respect also there has never been a time and never will be a time when the present supposed lien could operate. If the husband should die first, the wife would take all the property without regard to the judgment or the supposed lien, hence in that case also there would be no room within which the lien could operate.
We have already considered the possible contingency of the wife dying first, and found that there was no sufficient room during her lifetime within which the lien could operate. And as she is still alive and the lien has not yet operated, there has not yet'been any incumbrance, nor any forfeiture. And the husband’s possible contingency of at some time having a sole and separate estate would be too uncertain and remote to constitute the basis for a present or existing judgment lien or for a present levy of "an execution. Upon this question see
We do not think that the aforesaid judgment is any incumbrance upon the property in question, and therefore the judgment of the court below in this case will be affirmed.
Concurrence Opinion
I fully concur in the affirmance of the judgment of the court below upon the ground that no acts of the parties come within the terms of the conditions of the deed that operate as a forfeiture of the title; but I strongly dissent from many things stated in the opinion.
The trial court construed the deed of the 17th of April, 1882, from A. Shinn to Eugene F. Shinn and his wife, Ella Shinn, as conveying to each an undivided one-half thereof; that is, that the deed made the husband and wife tenants in common in the real estate therein described. Ella Shinn, the wife, in her petition alleges that she is the owner and entitled to the immediate possession of the undivided one-half of the real estate in dispute; she did not in her petition nor does her counsel claim, that the deed conveyed to her and her husband an estate by entirety. At the time this action was brought and at the rendition of the judgment, Ella Shinn was the wife of Eugene F. Shinn. On August 6, 1884, an action for divorce was commenced by Eugene F. Shinn against his wife, Ella Shinn, but this action was afterward'dismissed, leaving the parties husband and wife: $30 was allowed Ella Shinn as temporary alimony in that suit. No execution has ever been issued upon the allowance, and Ella Shinn is now and has always been willing to release the real estate in controversy
Again, if estates by entirety are recognized in this state, I think the great weight of authority is that the wife has no control over the estate during the joint lives of herself and husband. Clearly, at common law, the husband had the right to the use and control of his wife’s property, and hence had the right to the use and control of the property which was held by them as tenants by entirety.
It is stated in the opinion that “ our statutes have changed this rule of the common law, and that the wife now has the same right to the use and control of the property held by herself and husband together as tenants by the entirety, as he has.” In Pennsylvania and Indiana there are decisions supporting this view, but the decisions of most of the states where estates by entirety are adopted or recognized, are otherwise, notwithstanding such states have statutes relating to married women, similar to our own. Thus in Pray v. Stebbins, 141 Mass. 218" court="Mass." date_filed="1886-02-26" href="https://app.midpage.ai/document/henderson-v-benson-6421973?utm_source=webapp" opinion_id="6421973">141 Mass. 218, it is said:
“The statutes enabling a married woman to receive, hold, manage and dispose of real and personal property in the same manner as if she were sole, cannot, we think, be construed to apply to the estate by entirety of a husband and wife, because other statutes in effect prevent this conveyance from being construed as creating a tenancy in common; and if a married woman held this estate as if she were sole, she would hold it as a tenant in common with her husband.”
In Washburn on Real Property (vol. 1, p. 707) it is said:
“If the husband convey the eutire estate during coverture, and dies, his conveyance will not have affected her rights of survivorship to the entire estate. But if in such case the husband survive, his conveyance becomes as effective to pass the whole estate as it would have been had the husband been sole*15 seized when he conveyed. And during coverture the husband has the entire control of the estate, and the same is liable to be seized by his creditors during his life.”
See Hall v. Stephens, 65 Mo. 670" court="Mo." date_filed="1877-10-15" href="https://app.midpage.ai/document/hall-v-stephens-8005749?utm_source=webapp" opinion_id="8005749">65 Mo. 670; also Ames v. Norman, 4 Sneed, 692.
In Pennsylvania, the statute relating to the rights of property of married women clearly embraces estates held by them by entirety, and therefore it is doubtful whether the Pennsylvania decisions apply under our statute, which is different. (McCurdy v. Canning, 64 Pa. St. 39; Pa. Married Woman’s Act of April 11, 1848.)
In Indiana, the supreme court of that state says in its opinion that an estate by entirety does not come within the strict letter of the statute relating to married women, but that it comes within the spirit of it. (Chandler v. Cheney, 37 Ind. 391" court="Ind." date_filed="1871-11-15" href="https://app.midpage.ai/document/chandler-v-cheney-7038840?utm_source=webapp" opinion_id="7038840">37 Ind. 391.)
In Baker v. Stewart, it was held that the statutes of this state relating to married women, and giving to them the right to control and manage their own separate property, did not in the least affect the question as to what estate passed by deed to a husband and wife. From this doctrine I dissented. (40 Kas. 454-468.) Now it is held in the opinion that the statutes relating to married women give the wife the same right to the use and control of the real estate held by her in entirety, as the husband. As I said in Baker v. Stewart, supra, if we are to follow precedent only in this matter, and estates by entirety are recognized or adopted in this state, it seems to me that the great weight of authority should also be followed, to the effect that the wife has no interest or control over such an estate during the joint lives of herself and husband. In my opinion, if the statutes of the state relating to married women do not in the least affect the old common-law doctrine as to the estate passed by deed to a husband and wife, then these statutes can have no application to an estate by entirety, as they have reference to the wife’s separate or sole estate. (Pray v. Stebbins, supra, and the cases there cited; see also Bradley v. Love, 60 Tex. 472" court="Tex." date_filed="1883-12-07" href="https://app.midpage.ai/document/bradley-v-love-4894258?utm_source=webapp" opinion_id="4894258">60 Tex. 472.) Where the husband and
The way out of the whole difficulty, it seems to me, would have been to declare the law to be, that within the spirit if not the letter of the statutes relating to married women existing in this state, when lands have been conveyed to the husband and wife jointly without any statement in the deed as to the manner in which the grantees should hold, they should be treated as tenants in common.
A portion of the opinion is devoted to speculations over the probabilities of Ella Shinn, the wife, living longer than the husband, Eugene F. Shinn. In this connection life expectancy tables are referred to. I do not think that these tables, in this case, have much application. Such tables are generally based upon the average duration of a multitude of human lives. Many persons are in good health, or at least of average health. According to the testimony, Ella Shinn seems to be a person greatly diseased. At the time her testimony was given, she stated “she was under the care of a physician; that her health was very poor; that she was obliged to take medicine every day; and that she was in such a nervous condition she was unable to be away from home alone.” In the brief her counsel state “that when she was married, she was a healthy young lady; that she became sick three or four months after her marriage; that she has continued sick ever since; that no amount of property will ever restore her health, and that she deserves, not only the undivided half of the eighty acres of land to sustain her during her life of illness, but all that Eugene F. Shinn may ever own.” The evidence shows the conveyance was made to Ella Shinn and her husband as a wedding present, soon after their marriage. This was the 17th day of April, 1882. Finally, if Ella Shinn and her husband hold the real estate by entirety, and are both entitled to the same right in the use and control of the property, can the wife in a separate action, not joining her husband with her, recover the rents and profits of any part ? In an
The pleadings and the testimony are in the record presented to us. The testimony is undisputed, and in such a case the court must apply the law to the facts. As there is no conflict in the testimony, this court can as well decide the legal effect of the testimony in the record as the court below. The defendant below excepted to the judgment, and this exception goes to the rents and profits as much as to any other .part of the judgment. Can this judgment be sustained, if the real estate is held by entirety? Is this judgment a bar to an action that may be brought by Ella Shinn and her husband, Eugene F. Shinn, for the possession of all or a part of the premises, or for the rents and profits? Is the judgment a bar to any action by the husband, Eugene F. Shinn, for rents and profits? In view of the opinion in this case, these and many other interesting inquiries, which it seems to me difficult to logically answer, naturally present themselves, if the nice distinction created in the ancient books of estates by entirety are in line with our statutes, judicial decisions, and the condition and wants of our people, as decided by the majority of this court in Baker v. Stewart, supra.