Russell v. Russell

• Decision Date: 24 May 1894
• Citation: 26 S.W. 677
• Parties: RUSSELL v. RUSSELL et al.
• Court: Missouri Supreme Court

26 S.W. 677

RUSSELL v. RUSSELL et al.

Supreme Court of Missouri, Division No. 2.

May 24, 1894.

HUSBAND AND WIFE — LANDS OWNED AS TENANTS BY THE ENTIRETY — PARTITION AFTER DIVORCE.

Where every interest in real estate granted or devised to two or more persons, other than to executors or trustees or to husband and wife, is a tenancy in common, unless expressly declared to be in joint tenancy (2 Rev. St. 1889, § 8844), a divorced wife may have partition of land owned by her and her husband, prior to such divorce, as tenants by the entirety.

Appeal from circuit court, St. Clair county; D. P. Stratton, Judge.

Action by Lottie R. Russell against George N. Russell and others for partition of certain real estate. From a judgment for plaintiff, defendant George N. Russell appeals. Affirmed.

I. C. Duckworth, for appellant. John E. Lucas, for respondent.

SHERWOOD, J.

The question presented by this appeal is whether a wife divorced from her husband can have partition of land owned by them, prior to such divorce, as tenants by the entirety. Such tenancies were recognized at an early day in this state (Gibson v. Zimmerman, 12 Mo. 385); at a time, too, when our statute was in this form: "Every interest in real estate granted or devised to two or more persons, other than to executors or trustees as such, shall be a tenancy in common unless expressly declared in such grant or devise to be in joint tenancy." The statute had been in this form since 1835, and substantially in that form ever since 1825. Thus the statute remained until 1865, when it was amended by striking out the words "as such," and inserting immediately after them, "or to husband and wife." Gen. St. 1865, p. 443, § 12. This rule of the common law seems to have been intentionally emphasized in the amended statute just quoted, and is a settled rule of property of this state, and the section still retains a place in the last revision (2 Rev. St. 1889, § 8844). Garner v. Jones, 52 Mo. 68; Shroyer v. Nickell, 55 Mo. 264; Hall v. Stephens, 65 Mo. 670. In which last case, after a considerable citation and discussion of authorities, it was ruled that the interest of a husband in land by entirety could be sold under execution, but that his wife, surviving him, would take the entire estate. The peculiarities of this sort of tenancy are derived from the fact that, in legal contemplation, husband and wife are a unit of personalty. There can be no moieties between them. They are each seised of the entirety, per tout, not per my, and the husband cannot forfeit or alien the estate except during the period of his life. Hall v. Stephens, supra, and cases cited. And, owing to this legal unity of husband and wife, it is said to be impossible, even by express words, to convey land to them so as to make them tenants in common with each other. Dias v. Glover, 1 Hoff. Ch. 71; Stuckey v. Keefe, 26 Pa. St. 397, and cases cited. This being the case, the question arises what effect, if any, does a decree of divorce have upon the status of an estate by entirety? On this point, Freeman observes: "At the present day, partition of property held in entireties may be obtained in connection with a decree of...