68 P. 70 | Kan. | 1902
The opinion of the court was delivered by
A conveyance of certain lots situate in Kansas City, Kan., was made December 1, 1880, jointly to Martin Stewart and Catherine Stewart, who were husband and wife. On September 19, 1890,
The only important question in this case is whether the children of the deceased Catherine Stewart were necessary parties to the foreclosure proceeding. If the estate of Martin and Catherine Stewart in the lots was one which is defined to be one in entirety, and if such estates were not abolished in Kansas by section 1 of chapter 203, Laws of 1901 (Gen. Stat. 1901, § 2534), then the foreclosure proceedings were regular,
Under the common law, it was'held that “tenancy by entireties arises whenever an estate vests in two persons, they being, when it so vests, husband and wife.” (Freem. Coten. & Part. [2d ed.] § 63.) The same author, continuing, says :
“A conveyance to husband and wife creates neither a tenancy in common nor a joint tenancy. The estate of joint tenants is a unit made up of divisible parts; that of husband and wife is also a unit, but it is made up of indivisible parts. In the first case, there are several holders of different moieties or portions, and upon the death of either the survivor takes a new estate. ■ He acquires by survivorship the moiety of his deceased, cotenant. In the last case, though there are two nat-; ural persons, they are but one person in law, and upon the death of either the survivor takes no new estate.”' (§64.) . ;
It is unnecessary to consider how much now re-‘ mains of the fiction that husband and wife constitute but one person in the law. It is sufficient to the, present purpose to advert to the fact that under our, statutes they may, and do, hold estates separately,/ and their rights with reference thereto are substantially equal. The reason for the rule of the common; law no longer exists, and the rule itself, having no. substantial basis to rest upon under modern condi-■; tions, is no longer entitled to respect. Indeed, there1 are authorities holding that even under the common ¡
In the case of Baker v. Stewart, 40 Kan. 442, 452, 19 Pac. 904, 2 L. R. A. 434, 10 Am. St. Rep. 213, it was said:
‘ ‘ The common law in this state has probably been so amended that the husband and wife have an equal right to control all the land which they own in entirety, but in other respects the estate of entirety is probably precisely the same as it was before the statutes rélating to married women took effect. With this change in the right of the husband to control the real estate owned by his wife or by him and her in entirety, the estate of entirety has become more like the ordinary estate of joint tenancy, though it is not yet strictly like such an estate.”
Immediately after the rendition of the decision just quoted from, the legislature of Kansas passed the act above referred to, which is as follows :
“An act to abolish survivorship in joint tenancy.
“ Be it enacted, by the Legislature of the State of Kansas:
■ “ Section 1. If partition be not made between joint tenants or joint owners of estates in entirety, whether they be such as might have been compelled to make partition or not, or whatever kind the estate or thing holden or possessed be, the parts of those who die first 'shall not accrue to the súrvivors, but shall descend or ,pass by devise, and shall be subject to'debts or charges land be considered to every other intent and purpose ¡as if such joint tenants or tenants of estate in entirety i had been or were tenants in common; but nothing in I this act shall be taken to affect any trust estate.
; “Sec. 2. This act shall take effect and be in force ■ from and after its publication in the statute-book.” \ (Laws 1891, ch. 203; Gen. Stat. 1901, §2534.)
The objection urged to this act is that its title is not
“A slight inaccuracy in the description of a thing, in an act of the legislature, or in the title to the act,.| will not render the act void where it may be known, \ both from the act and the title thereto, and the cir-1 cumstances then existing, what was meant and in- ■ tended by the legislature.” ■ ¡
The judgments of the court of appeals and district court are reversed, and the case remanded for further proceedings in accordance with this opinion.