Barnum v. Le Master

• Decision Date: 16 June 1903
• Citation: 75 S.W. 1045,110 Tenn. 638
• Parties: BARNUM v. LE MASTER et al.
• Court: Tennessee Supreme Court

75 S.W. 1045

110 Tenn. 638

BARNUM v. LE MASTER et al.

Supreme Court of Tennessee.

June 16, 1903

Appeal from Chancery Court, Shelby County; F. H. Heiskell Chancellor.

Suit by J. H. Barnum against E. B. Le Master and others. From a decree for complainant, defendants appeal. Reversed.

Frank P. Poston and J. W. Cananda, for appellants.

Smith & Trezdvant, for appellee.

SHIELDS J.

The question for determination in this case is whether a conveyance of lands made by a husband to his wife, in the usual form, without any words indicating an intention to do so, has the effect in law, ex proprio vigore, to create a technical separate estate in the wife. The facts necessary to be stated are these: Complainant, J. H. Barnum, and defendant Clara S. Barnum are husband and wife, without issue of their marriage. J. H. Barnum, on December 2, 1895, in consideration of an antenuptial contract, conveyed to his wife, Clara S. Barnum, certain valuable lands lying in Shelby county, near Memphis, the conveyance being in the usual form without any words indicating an intention to create a separate estate, reciting a consideration of love and affection, and containing covenants of seisin and general warranty. Clara S. Barnum, without the consent or joinder of her husband, J. H. Barnum, November 7, 1902, conveyed by deed with proper privy examination, for a valuable consideration a portion of these lands to the defendant E. B. Le Master. Complainant filed his bill November 14, 1902, charging that Mrs. Barnum had only a general estate in said lands, and could not sell and convey them without him joining in the conveyance, and that the deed made by her was void, and a cloud upon his marital rights in the premises. The prayer is that the conveyance be declared void, canceled, and surrendered, and E. B. Le Master be enjoined from taking possession of the property. This relief was granted by the chancellor, and a decree pronounced in accordance with the prayer of the bill, from which the defendants have appealed and assigned errors.

Complainant, as stated, contends that the defendant Clara S. Barnum had only a general estate in the lands; that by virtue of his marital rights he has the right to the possession of them during their joint lives, and that she cannot sell or convey them during that period without his joining in the conveyance, and therefore the sale and conveyance made by her to E. B. Le Master is a nullity, and a cloud upon his title. While the insistence of the defendant is that the conveyance to Mrs. Barnum, being one from husband to wife, by necessary implication and operation of law created and vested in her a separate estate in the lands conveyed, notwithstanding the entire absence of any words evidencing such intention, and which are necessary in transfers of personal and conveyances of real property by strangers to married women in order to create such an estate; and that the conveyance made to E. B. Le Master vests in him a valid title, free from any and all claims of her husband. It has long been the established rule in this state that transfers of personal property made by a husband to his wife without words to that effect, by implication and as a matter of law vests in the wife a technical separate estate in the thing transferred, but we have no reported case involving a conveyance of real estate in which the doctrine has been invoked. We, however, can see no reason why a distinction should be made in this respect between transfers of personal property and conveyances of real estate. The reasons given in support of the rule as applied to personal property, the chief of which is that the transfer is without beneficial effect, and abortive, unless a separate estate is vested, apply with equal force to conveyances of lands. This fully appears from a review of our cases involving sales and gifts of personal property by husbands to their wives. The earliest of these cases is that of Powell v. Powell, 9 Humph. 486, where a sale of four slaves, made by Robt. Powell to his wife, Mary L. Powell, for a valuable consideration, was an issue. Judge Turley, for the court, in this case says: "We have seen that though, by the common law, a married woman could not have and hold property to her separate use, yet equity has so far qualified this as to permit her to take and enjoy property to her separate use, when it is given to her to that intent. But equity has done this with timidity, for it holds that each claim on the part of a married woman, being against common right, and it being a presumption of law that the property which she becomes the owner of is her husband's, a trust by which it is to be secured to her separate estate free from his marital rights should very distinctly express that intention. It, however, holds it to be immaterial in what form or phrase a trust of that nature is described, technical language not being deemed necessary, and it being only required that the intention of the gift shall appear manifestly to be for the wife's separate enjoyment, and in bar of the husband's rights. This is unquestionably the law in relation to gifts, devises, or settlements made in favor of married women by third persons, and gifts and voluntary settlements made after the marriage by the husband, though that is not so clear. But is this principle applicable to the cases of purchases made by the wife from the husband for a good and valuable consideration paid him by her out of her estate which has already been settled to her separate use and maintenance? I think not, because, in the first place, the reason why such direct expression is regarded when gifts are made to the wife, as we have just seen, is because, in contemplation of law, all gifts of property to the wife are gifts to the husband, and that any other intendment is in violation of his rights. But such is not the case when he himself sells and conveys property for a valuable consideration paid him out of her separate estate. In such case there is and can be no intendment in favor of his rights to the property thus conveyed, and it is absurd to talk about such a conveyance being against his common right; for it is impossible to hold, with regard to intention, that a sale of property by the husband to the wife for a valuable consideration, paid him out of her own private estate, can have any other design than the separate use and benefit of the wife. The husband parts from his interest by his conveyance, and, if the operation of the conveyance be to vest the property in the wife for his benefit and use, and he be immediately remitted to all of his original rights, then this whole transaction is a farce, and the law, in permitting such contracts, has placed itself in a very ridiculous position."

In McCampbell v. McCampbell, 2 Lea, 664, 31 Am. Rep. 623, the court, citing with approval the Powell Case, says: "A consideration passing from the wife will sustain a direct conveyance of the property by the husband to her, and the very nature of the transaction will fix the property, even if personalty, with a trust for the separate use of the wife, without any words to that effect."

In Sherron v. Hall, 4 Lea, 500, it is said: "But the gift was, in effect, as if the husband, for a valuable consideration, had made the conveyance to the wife, in which case the transaction, from its very nature, would confer a separate estate, without express words."

In Templeton v. Brown, 86 Tenn. 55, 5 S.W. 441, the court says: "The intention to create a separate estate must clearly appear either by express terms or by necessary implication; otherwise the marital rights of the husband will attach. When the gift is from a stranger, the intention must usually appear from the express language of the donor in terms creating such an estate; otherwise the rights of the husband will not be excluded. But where the gift is from the husband, the intention to exclude himself is inferred from the circumstances of the case and the situation of the parties, without the use of the express words that would be required where a third person is the donor"--citing 1 Bishop on Married Women, § 119; Story's Eq. § 1373; Perry on Trusts, 639.

In Carpenter v. Franklin, 89 Tenn. 142, 14 S.W. 484, it is said: "An agreement that the gift of the husband to the wife shall be to her separate use arises from the very necessity of the case, else the gift would be ineffectual. A gift to the wife of her own earnings, either from her labor as for sewing, or from the profits of her boarders, or of her savings from money furnished her for her own personal expenses or her household expenses, may be made out by circumstances, and, when so made out, is as effectual as if proven by express contract. Especially does the implication of gift to her sole and separate use arise when, as in this case, the wife, with the assent of...