136 Tenn. 184 | Tenn. | 1916
delivered the opinion'of . the Court.
Mrs. Rosa S. Brown, being the owner of two tracts of land in her own right, lying in McMinn county, this State, united with her husband, G. W. Brown, in a deed to W. T. Lane, the brother of Mrs. Brown. This deed, after the conveying words, contains the following:
“Be it known, however, that this conveyance is made to W. T. Lane only that he may make an instanter deed to us, thereby conveying the fee from Rosa Brown to herself and husband, to wit, George W. Brown, who has this day purchased from her a one-half undivided interest in said two tracts of lands, the consideration to be shown in the deed from said W. T. Lane to us of even date herewith, the purchase price to be shown in said deed. The purpose of making this conveyance is to effect much-needed and valuable improvements on the farm for the want of which it is greatly reduced in value at present, and to secure said G. W. Brown for all improvements and expenditures of labor and money enhancing said farm in value in the event of his surviving me, but not to be effectual to convey the entire estate absolutely. ’ ’
On the same day W. T. Lane conveyed the lands to Brown and wife, adding at the close of the deed the following:
“It is agreed that, in the event of G. W. Brown dying without bodily heirs, Rosa S. Brown takes*187 by survivorship, and in the event of Rosa S. Brown dying without issue, the said doctrine does not apply by survivorship, hut it is Expressly understood that Gr. W. Brown shall take and hold, in that event, an undivided moiety hereby conveyed, and be discharged from accounting for any unpaid balance of money to Rosa S. Brown, or her heirs. These tracts of land were this day conveyed by said Rosa S. Brown to me for the said purpose of obtaining a reconveyance to the parties and on the terms heretofore set out, all of which are fully understood and agreed by the parties in interest.”
The foregoing deeds were made with a view to the rule that under a conveyance of land to husband and wife they take by the entireties, nothing else appearing. Taul v. Campbell, 7 Yerg., 319, 27 Am. Dec., 508. This accounts for the language used in the reconveyance to Mrs. Brown; but, inasmuch as the conveyance to Gr. W. Brown was different, the rule could not' apply. The result is that under the second deed Mrs. Brown took an undivided half of the land in fee absolutely, while G. W. Brown took a de-feasible estate; that is, a fee subject to a condition in favor of Mrs. Rosa S. Brown, in case G. W. Brown should die without children (the term “bodily heirs” meaning children as used), which, on a proper construction of the words “Rosa S. Brown takes by survivorship,” would permit her to enter upon the happening of the condition (4 Kent Comm., marg. p. 9), in this construction treating Mrs. Rosa S. Brown
It is insisted for Mrs. Rosa S. Brown that, inasmuch as she was married at the time the deeds were made, and as they imported a contract between her and her husband, the transaction was void in so far as it purported to deprive her of any part of her title.
We do not think it has been doubted, since the celebrated case of Campbell v. Taul, 3 Yerg., (11 Tenn.) 548, decided in 1832, that such a transaction is lawful.
That case was notable for more reasons than one. It appeared that the young, beautiful, and brilliant wife of Thomas P. Taul, a prominent young lawyer of Winchester, Tenn., when she was in very poor health, and not long before her death, desired to so arrange her lands that her husband could enjoy them. Being advised that she conld not make a will, she adopted the plan of joining her husband in a conveyance to a third party, with the understanding that that party should immediately reconvey to the
Now, it is true that in this case the court did. not, in so many words, say that such a contract could be made by a husband and wife, by the device of executing a deed to a third party and having a recon-veyance, but it was treated as being well-settled law, and, notwithstanding the very .strong objection which Mr. Justice Green had to the result reached, he no
Ever since the decision in Campbell v. Taul, so far as we know, this question has remained at rest; and, indeed, we can see no objection to it -on principle. There is no doubt that the wife could convey all of her general estate in land for the security of her husband’s debts in a trust deed carrying a power of sale, and in that manner might lose all of her lands. Voorhies v. Granberry, 5 Baxt., (64 Tenn.) 704; McFerrin v. White, 6 Cold., (46 Tenn.) 500. It never has been doubted that a married woman, by deed with privy examination and joined by her husband, could convey her land to a third person, and that a reconveyance by that person to her husband would be a valid transaction, fraud being out of the way. Of course, under such a transaction it would be inferred that there had been a tacit agreement, if not in words, that the reconveyance should be made. How could it alter the result that an agreement was made imposing a trust on the vendee or third person to make the reconveyance? Indeed, we do not doubt that under such an arrangement the
However, it is possible that the foregoing discussion is unnecessary, since, though the question has been raised and discussed at length in the briefs in this case, it appears that the husband and wife, together, long after the foregoing transaction, sold the land and conveyed it to another person, and the contest between them is now over the purchase money. It was agreed at the time the land was sold that each should have half the money, and the chancellor so decreed. The wife has appealed from this decree. She did not contend that there was any agreement that she should have more. There was certainly no error in this decree, since if the wife had consented to a sale of her land without- such agreement with her husband he would have taken the whole. Pritchard v. Wallace, 4 Sneed, (36 Tenn.) 405, 70 Am. Dec.,
The transactions in the present case all arose prior to our married woman’s act passed in the year 1913, and therefore that statute has no hearing upon the controversy.
The result is the decree of the court of civil appeals is affirmed.