Vasilion v. Vasilion

• Decision Date: 05 September 1951
• Docket Number: No. 3798,3798
• Court: Virginia Supreme Court
• Parties: ERNEST VASILION v. GEORGE VASILION AND OTHERS. Record

Page 599

66 S.E.2d 599

192 Va. 735

ERNEST VASILION v. GEORGE VASILION AND OTHERS.

Record No. 3798.

Supreme Court of Appeals of Virginia

September 5, 1951.

W. L. Devany, Jr., for the appellant.

Fred E. Martin, Richard W. Ruffin and James Martin Willis, for the appellees.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

By deed dated June 25, 1946 Lionel Travis Woodard conveyed unto George Vasilion and Anne A. Vasilion, husband and wife, a lot in the city of Norfolk. The deed recites that the property is conveyed with general warranty unto the parties 'as tenants by the entireties, with right of survivorship as at common law'.

This deed was recorded in the clerk's office of the corporation court on June 26, 1946. On August 17, 1949 George Vasilion and Anne A. Vasilion, 'husband and wife', conveyed the land to Anne A. Vasilion. The consideration stated was 'natural love and affection'. This was a deed in fee simple with general warranty and was recorded on the day it was written.

Ernest Vasilion, the father of George Vasilion, filed a bill in chancery in the circuit court at the first February rules, 1950, against George Vasilion, Anne A. Vasilion, C. M. Hare, and Richard W. Ruffin and Roy F. Phillips, trustees of Commonwealth Building and Loan Association, defendants.

The bill alleges that in May, 1949, Ernest Vasilion lent George Vasilion $3,000 for the purpose of assisting him in business; that George Vasilion had only repaid $200 on the loan; that in November, 1949 Ernest Vasilion had secured a judgment against George Vasilion for the balance due, $2,800, which judgment had been duly docketed, etc. The bill further alleges that at the time the father made the loan to the son 'the said George Vasilion and Anne Vasilion were the owners' of the land and improvements thereon. A copy of the grantor's deed was filed as exhibit 'A' with the bill. The bill further recites the sale of the land by George Vasilion and Anne A. Vasilion to Anne A. Vasilion, and a copy of this deed is filed as Exhibit 'B'.

Continuing, the bill states that the deed from George Vasilion and Anne A. Vasilion to Anne A. Vasilion was subject to a deed of trust to Ruffin and Phillips, trustees of the defendant building and loan association, and that the same was sold subject to a judgment for $332.03 in favor of defendant C. M. Hare; that these claims and the debt due complainant were unpaid at the time Anne A. Vasilion acquired the property, and that this conveyance was made 'with the object and intent to prevent' Ernest Vasilion from realizing anything from the property.

Finally 'complainant alleges and charges that no consideration whatsoever passed from the said Anne A. Vasilion to the said George Vasilion for the said deed; that the same was made to hinder, delay and defraud your complainant, and he is entitled to have the said deed set aside and property therein embraced subject to the payment of your complainant's said judgment and subject to any prior liens thereon.' The bill prays that the named parties be made defendants, that the deed of August 17, 1949 to Anne A. Vasilion be set aside as fraudulent and void 'and that the property embraced in it be sold and the proceeds be applied to your complainant's claim and an accounting be taken to ascertain the amount of liens and their priorities'.

Anne A. Vasilion filed her demurrer to the bill, stating: 'This defendant says that the bill filed in this cause is not sufficient in law, and especially in that by virtue of section 5160, Michie Code of 1942 (Code of Va., 1950, Title 55-21), the real estate mentioned and described in said bill of complaint, as conveyed by deed of June 25, 1946, by Lionel Travis Woodard to Anne A. Vasilion and George Vasilion, husband and wife, as tenants by the entireties, with right of survivorship as at common law, was not subject to partition as between Anne A. Vasilion and George Vasilion, and that the conveyance of August 17, 1949, did not change the status of said real estate in so far as creditors, then and future, of the said George Vasilion were or are concerned.'

None of the other defendants appeared or filed pleadings in the case.

This demurrer was sustained and the bill dismissed, and from the decree so holding this appeal was awarded.

Appellant contends that section 55-20, Virginia Code, 1950, abolished estates by the entireties. The pertinent part of this section reads: 'And if hereafter any estate, real or personal, be conveyed or devised to a husband and his wife they shall take and hold the same by moieties in like manner as if a distinct moiety had been given to each by a separate conveyance.' Section 55-21 of the Code is entitled 'Exceptions to preceding section', and reads: 'The preceding section shall not apply to any estate which joint tenants have as executors and trustees, nor to an estate conveyed or devised to persons in their own right when it manifestly appears from the tenor of the instrument that it was intended the part of the one dying should then belong to the others. * * *'

The land here in question was conveyed to 'George Vasilion and Anne A. Vasilion, husband and wife, as tenants by the entireties, with right of survivorship as at common law.'

It cannot be logically contended that the quoted words are meaningless. They were placed in this deed for the express purpose of bringing the conveyance within the exception contained in section 55-21, Virginia Code, 1950.

Appellant argues, 'where a conveyance was to a man and wife under which by the common law the right of survivorship on the death of either took place, it is difficult to comprehend, if comprehensible at all, why the addition of the words 'with right of survivorship as at common law' contained in the deed * * * should operate to prevent the statute from applying to such a deed to which such right of survivorship was an essential and inherent feature without expressing it.' It may not have been necessary to use the quoted words in the deed. They, however, make doubly clear that the grantor intended to bring the conveyance within the exception to section 55-20, Code of 1950.

Appellant concedes, 'at common law when land was conveyed to a man and wife the seisin of each was an entirety or in one person because from the unity of their person by marriage they have land entirely as one individual and it follows that on the death of either husband or wife survivorship takes place between tenants by entireties', citing Graves, Real Property, section 151, page 180.

This is so, even though the deed, will or other instrument does not express how they are to take. Hunt v. Blackburn, 128 U.S. 464, 9 S.Ct. 125, 32 L.ed. 488; Simons v. Bollinger, 154 Ind. 83, 56 N.E. 23, 48 L.R.A. 234; 26 Am. Jur., Husband and Wife, § 68.

Under the common law the same words of conveyance which would make other grantees joint tenants will make a husband and wife tenants by the entireties. Hunt v. Blackburn, supra. Clearly, the deed in this case created in George Vasilion and Anne A. Vasilion an estate by the entireties. Section 55-21, Code, 1950; Allen v. Parkey, 154 Va. 739, 149 S.E. 615, 154 S.E. 919.

When an estate by the entireties is once set up, neither spouse can sever it by his or her sole act. Palmer v. Mansfield, 222 Mass. 263, 110 N.E. 283, L.R.A. 1916C, 677. Neither spouse can convey or dispose of any part of it so as to effect such a severance. They may, of course, terminate the estate by a joint conveyance of the property. 2 Minor, Real Property, § 854; Thornton v. Thornton, 3 Rand (24 Va.) 179.

Upon the death of either spouse the whole of the estate by the entireties remains in the survivor. This is so not because he or she is vested with any new interest therein, but because in the first instance he or she took the entirety which, under the common law, was to remain in the survivor. Lang v. Commissioner of Internal Revenue, 289 U.S. 109, 53 S.Ct. 534, 77 L.ed. 1066; Lux v. Hoff, 47 Ill. 425, 95 Am.Dec. 502.

The heirs of the deceased spouse inherit no part of the property so held. The entire estate remains exclusively in the surviving spouse. 59 A.L.R. 707.

The husband and wife unquestionably can join in a deed conveying the entirety to a third party, and in Virginia section 55-9, Code, 1950, permits a husband and wife to join in a deed conveying land to himself or herself.

It follows that the entirety is liable for the joint debts of both spouses and is reachable against them by proper process. 35 A.L.R. 144. But where a tenancy by the entirety in the fee simple is once created the property is completely immune from the claims of creditors against either husband or wife alone. See Glenn on Fraudulent Conveyances and Preferences, Vol. 1, page 280.

'These indubitable common law rules require the conclusion that a creditor cannot do with the right of a tenant by the entirety that which the tenant cannot do. The statute as to attachment of land of a debtor (General Laws, chapter 236 § 1) affords no relief because from its nature the interest of the wife as tenant by the entirety is not during coverture subject to attachment, levy and sale. Since the wife cannot sell it herself, her creditor cannot sell it by resort to attachment and levy on an execution in an action at law. * * * The result here reached * * * is in harmony with what is deemed to be the prevailing trend of authority elsewhere.' Licker v. Gluskin, 265 Mass. 403, 164 N.E. 613, 63 A.L.R. 231, 235, citing Chandler v. Cheney, 37 Ind. 391; Turner v. Davidson, 227 Mich. 459, 462, 198 N.W. 886; Stifel's Union Brewing Co. v. Saxy, 273 Mo. 159, 201 S.W. 67, L.R.A. 1918C, 1009; Beihl v. Martin, 236 Pa. 519, 84 A. 953, 42 L.R.A. (N.S.) 555; Ades v. Caplan, 132 Md. 66, 103 A. 94, L.R.A. 1918D, 276.

There are cases holding to the contrary but they are incompatible with our adjudications. See Moore v. Denson, 167 Ark. 134, 268 S.W. 609; Ganoe v. Ohmart, 121 Or. 116, 254 P. 203, and Notes...