Whitley v. Meador, 137 Tenn. 163

137 Tenn. 163 | Tenn. | 1916

Mr-. Special Justice Clark

delivered the opinion of the Court.

This case involves the question of the ownership of a certain house and lot in Macon county, Tenn., claimed by the complainant, Mollie Whitley, and also by the defendant Meador. The defendant was in possession of the house and lot at the time the hill in this case was filed, and had been in possession for a number of years. In her bill, the complainant charges that she is the owner of the property, and she seeks to eject the defendant and to have an accounting for rents.

The defendant denies that plaintiff is the owner of the property, or that she is entitled to the possession of the same, and insists that the title to the property is in him, as is also the right of possession.

It appears that in January, 1905, complainant and her then husband, S. F. Holland, became the owners of the house and lot in question under a deed that vested the title in them as tenants hy the entirety. In August, 1906, S. F. Holland undertook, hy deed, to convey the property in question to Faust and others, and in May, 1907, Faust and others undertook ■ to convey the property by deed to the defendant, Gr. J. Meador. Both of' these deeds were duly acknowledged hy the makers and were duly registered. Mrs. Holland, now Mrs. "Whitley, did not join in either of these deeds. Mrs. Holland and her husband were not liv? ing on the property at the time the deed was made to Faust and others, and the vendees in that deed went into possession of the property about the time the deed was made to them, and remained in possession, until they conveyed the same to the defendant, Mead- or, when said defendant went into possession of said property, and has since remained in possession of same, claiming it as his own.

In March, 1912, Mrs. Holland was granted an absolute divorce from S. F. Holland. The house and lot in question was not referred to in the pleadings in the divorce case, and no adjudication was made with reference to same.

In June, 1913, Mrs. Holland married her present husband, Joel Whitley. S. F. Holland died in April, 1914, and the bill in this case was filed July 30, 1915.

Defendant insists that the deed from S. F. Holland was effective to vest his vendees with a good title to said house and lot, and that the deed from-Holland’s vendees to him vests him with a good title to said property. It is also the insistence of the defendant that, if the deed from S. P. Holland was not effective to convey to his vendees a good title to said property, that since he and his vendors have been in possession of said property for more than seven years, claiming it adversely and under color of title, plaintiff is barred by the statute of limitation of seven years; that in any event it was incumbent upon Mrs. Whitley to bring her action for the possession of said property-within three years from the time that the disability of coverture was removed; that this disability was removed when she procured an absolute divorce from S. F. Holland in March, 1912, and since the bill in this case was not filed until July, • 1915, more than three jmars had elapsed since she became discovert; and that she is therefore barred by the statute of limitation of three years.

An estate by the entirety is converted into an estate in common by a divorce of the owner. Hopson v. Fowlkes, 92 Tenn., 697, 23 S. W., 55, 23 L. R. A., 805, 36 Am. St. Rep., 120. But where the husband has parted with his interest in the land before the procurement of the divorce, the decree of divorce is not" effective to make the wife and the husband’s vendees tenants in common. The husband’s vendees stand in the same relation to the land that he occupied before the decree for divorce, and the husband’s vendee is vested with the right of the husband as it existed at the time of the sale, and if the wife survives the husband she becomes the absolute owner of the whole estate by right of survivorship. Ames v. Norman et al., 4 Sneed, 683, 70 Am. Dec., 269; Gillespie v. Woodford, 2 Cold., 642; Aiken v. Suttle et al., 4 Lea, 103; Harrer v. Wallner, 80 Ill., 197; 4 Cyc., 728. The' death of one tenant by the entirety effects a change in the properties of the legal person holding, and reduces the legal personage holding the estate to an individuality identical with the natural person, and the estate of the survivor is freed from participation hy the other. Washburn on Real Property, vol. 1, p. 707; Stuckey v. Keefe’s Executors, 26 Pa., 397; Beddingfield v. Estill, 118 Tenn., 39, 100 S. W., 108, 9 L. R. A. (N. S.), 640, 11 Ann. Cas., 904.

The wife does not have a separate right to the possession of the whole estate until the death of her husband, .at which time she becomes the separate owner of the whole property by right of survivorship. She would not, therefore, be barred hy .lapse of time reckoned from the date of the conveyance made by her husband, and the statute of limitation of seven years would not begin to run against her until the death of her husband and she became entitled to the separate possession of the whole property by right of survivorship. Miller v. Miller, Meigs, 484, 33 Am. Dec., 157; Aiken v. Suttle, 4 Lea, 109; McCarty v. King’s Heirs, 3 Hump., 267, 39 Am. Dec., 165; Harrer v. Wallner, 80 Ill., 203; Robinson’s Appeal, 88 Me., 17, 33 Atl., 652, 30 L. R. A., 335, 51 Am. St. Rep., 367.

We are therefore of the opinion that the statute of limitations of seven years did not begin to run against Mrs. Whitley until the death of her husband, which was in April, 1914, and, the suit having been brought within the seven years, her right of action was not barred. The chancellor sustained the bill, and decreed that Mrs. Whitley was the owner of the property and entitled to the possession of same, and his decree is affirmed. Appellants will pay the costs.