Allen v. Parkey

• Decision Date: 19 September 1929
• Citation: 149 S.E. 615
• Court: Virginia Supreme Court
• Parties: ALLEN et al. v. PARKEY.

149 S.E. 615

ALLEN et al.

v.PARKEY.

Supreme Court of Appeals of Virginia.

Sept. 19, 1929.

Appeal from Circuit Court, Lee County.

Suit by W. S. Parkey, as trustee under an assignment by W. P. Allen, against Mary Ely Allen and others. From the decree, defendants appeal. Affirmed in part, reversed in part, and remanded.

S. H. & Geo. C. Sutherland, of Clintwood, for appellants.

W. L. Davidson, B. H. Sewell, and Pennington & Cridlin, all of Jonesville, for appellee.

HOLT, J. On March 29, 1926, W. P. Allen, who was heavily indebted, executed a deed of assignment to Parkey, trustee, in which he conveyed all of his property, real and personal, in trust for the benefit of such of his creditors as were willing to accede to the terms of this deed. The property conveyed consisted of personalty worth about $4,000, and an undivided interest in large real estate holdings, which he held in common with his wife, Mary Ely Allen, together with his interest in a certain 50-acre tract of land conveyed to him and his wife by deed of date of October 28, 1902.

Thereafter this trustee brought this suit, that he might have the advice of the court in the administration of his trust; that his grantor's interest in land conveyed might be partitioned; and particularly that his interest in the 50-acre tract which he took under a deed from Anna Ely might be deter-mined. This is the deed on which the major controversy in this cause turned:

"This deed made this the 28th of October, 1902, between Anna Ely of the one part and W. P. Allen and Mary Ely Allen of the other part and all parties of Lee county, Virginia, witnesseth: That for and in consideration of thirteen hundred and fifty dollars paid and secured to be paid, the said Anna Ely doth give, grant, bargain, sell and convey with covenants of general warranty unto the said W. P. Allen and Mary Ely Allen all her right, title and claim and interest in and to all that certain tract or parcel of land situated and being in Lee county, Virginia, and in the vicinity of Walnut Hill supposed to contain fifty acres more or less and bounded as follows: Bounded on the east by the lands of Margaret Ely, on the south by Indian creek, and on the west by the lands of J. M. Wheeler, and on the north by the main county road. To have and to hold the said tract or parcel of land together with all the appurtenances thereunto belonging unto the said W. P. Allen and Mary Ely Allen their heirs and assigns forever. And the said Anna Ely covenants that she has done no act to encumber said tract of land and that she has the right to convey the same. Now should the said W. P. Allen survive his wife, Mary Ely Allen, the said tract of land to be his property to dispose of as he sees proper and the same applies to the said Mary Ely Allen his wife.

"Witness the following signature and seal the day and year above written.

"Anna Ely. [Seal.]

"Virginia, Lee County, to wit:

"Now it is further agreed by all parties concerned in this deed that should the said W. P. Allen survive his wife Mary Ely Allen and take unto himself a second wife that at the time of such marriage this tract or parcel of land is to then become the property of their daughter Maurine Allen, or should there be other heirs to be equally divided among them and should the said Mary Ely Allen survive her husband W. P. Allen then the same shall apply to her as above written. It is further agreed that the amount of purchase money for said land to be paid to their heirs when they become of age, unless paid before. "Virginia, Lee County, to wit:

"I, B. C. Campbell, a justice of the peace in and for the county and state aforesaid, do certify that Anna Ely whose name is signed to the above deed bearing date of the 28th day of October, 1902, has acknowledged the same before me in my county aforesaid.

"Given under my hand this 8th day of November, 1902.

"B. C. Campbell, J. P."

This deed was admitted to record on April 18, 1904.

For the trustee It was contended that under it title to an undivided one-half in terest vested in W. P. Allen and a like interest in Mary Ely Allen; that they hold as tenants in common. Of course, if this were true, partition might be had.

For Mary Ely Allen and Maurine Allen it is claimed that Mary Ely Allen and W. P. Allen hold as tenants by entirety and that no partition can be ordered. It is likewise claimed that Maurine Allen takes a remainder in fee in the event that the surviving consort marries again. The trial court by decree of date March 20, 1928, found as follows: It did "adjudge, order, and decree that the said W. P. Allen and Mary Ely Allen are vested with a joint fee-simple estate in and to the lands conveyed to them by the said deed, which title, interest, and rights the said W. P. Allen passed to the said W. S. Parkey, trustee, under the deed of assignment from W. P. Allen to W. S. Parkey, trustee, dated as aforesaid, with and subject to the right of survivorship as it existed at common law, and that the provision therein with reference to Maurine Allen is void, and that she takes nothing by reason of said deed."

The conveyance is after marriage to a man and wife jointly. The seisin is per tout et non per my, and there is survivorship upon the death either of husband or wife and neither can dispose of any part of the estate without the consent of the other. Hunt v. Blackburn, 128 U. S. 464, 9 S. Ct. 125, 32 L. Ed. 488; Graves' Notes on Real Property, § 161. Since there is no separate interest in either tenant there can be no partition. Tiffany on Real Property, § 194.

Prof. Graves, in his discussion of survivorship, makes this interesting and accurate statement: "We have seen that at common law survivorship is an incident common to joint tenancy by entireties. But, while this is so, the two estates are by no means identical, and it is held that a statute abolishing survivorship between joint tenants does not apply to tenants by entireties, who are not joint tenants, though occupying a somewhat similar relation. We have seen that in Virginia, as between joint tenants, survivorship was abolished as early as July 1, 1787; but this act was held to have no application to tenants by entireties. See Thornton v. Thornton, 3 Rand. (24 Va.) 179; Norman v. Cunningham, 5 Grat. (46 Va.) 63. And survivorship between tenants by entireties continued in Virginia, as at common law, until July 1, 1850, when it was partially abolished. See Code 1849, c. 116, § 18, enacting as follows: 'And If hereafter an estate of inheritance be conveyed or devised to a husband and his wife, one moiety of such estate shall on the death of either, descend to his or her heirs, subject to debts, curtesy or dower, as the case may be.' It will be seen that the above statute is confined to estates of inheritance by lands. But by Code 1887, taking effect May 1, 1888, tenancy by entireties is itself abolish-ed, except where the deed or will manifests an intent that it shall continue. 2 Min. Ins. (4th Ed.) 471.-For section 2430 (now section 5159) enacts: "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.' But section 2431 (now section 5160) declares that this shall not apply '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.'" Graves' Notes, § 153.

The effect of section 5159, when an estate is conveyed to a husband and wife, is to convert a tenancy by entirety into a tenancy in common, and of course to destroy survivorship....