Alles v. Lyon

• Decision Date: 07 January 1907
• Docket Number: 130
• Citation: 66 A. 81,216 Pa. 604
• Parties: Alles v. Lyon, Appellant
• Court: Pennsylvania Supreme Court

66 A. 81

216 Pa. 604

Alles v. Lyon, Appellant

No. 130

Supreme Court of Pennsylvania

January 7, 1907

Argued October 30, 1906

Appeal, No. 130, Oct. T., 1906, by defendant, from judgment of C.P. No. 2, Allegheny Co., Oct. T., 1905, No. 944, for plaintiff on case stated in suit of Louisa Alles, formerly Louisa Reis, v. David A. Lyon. Reversed.

Case stated to determine the marketable title to real estate. Before SHAFER, J.

From the record it appeared that the plaintiff, Louisa Alles, was divorced from John P. Reis. Reis and the plaintiff held the land in question as tenants by entireties. Plaintiff claimed that after the divorce she bought the land in at a sale under a municipal lien, and that she had a full fee simple title covering the entire interest in the land. Other facts appear by the opinion of the Supreme Court.

The court entered judgment for plaintiff for $1,775. Defendant appealed.

Error assigned was in entering judgment for plaintiff.

Judgment reversed and judgment directed to be entered for defendant.

John W Thomas, for appellant. -- John P. Reis, one of the tenants by entireties, was neither named in nor served with the scire facias upon which the judgment was founded, and, therefore, his interest in, or title to, the land was not divested and the sale was void and passed no title: Simons v. Kern, 92 Pa. 455; Ferguson v. Quinn, 123 Pa. 337; O'Byrne v. Philadelphia, 93 Pa. 225.

The divorce did not affect the title of the parties: O'Donnell v. Powell, 53 Pitts. Legal Jour. 255; Lewis's App., 85 Mich. 340 (48 N.W. 580); Stuckey v. Keefe, 26 Pa. 397.

The act of 1889 did not apply, and the court was without jurisdiction: Morgan's App., 110 Pa. 271.

W. H. Lemon, for appellee. -- After divorce the parties were tenants in common: Nelson on Divorce, sec. 1025; Donegan v. Donegan, 103 Ala. 488 (15 So. Repr. 823); Bramberry's Est., 156 Pa. 628; Redemptorist Fathers v. Lawler, 205 Pa. 24.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. CHIEF JUSTICE MITCHELL:

It appears by the case stated that the husband and wife were registered owners by entireties of the lot in question when the municipal lien was filed against the wife alone. Judgment on it was entered against her only, and though the levari facias avers that it is issued "with notice to John P. Reis" (the husband), yet, as said by the learned judge below, it does not appear that any such notice was given. As against the husband, therefore, the lien was a nullity, and the sale under it passed no title: Simons v. Kern, 92 Pa. 455; Ferguson v. Quinn, 123 Pa. 337.

There is no question involved about attacking a judgment collaterally, as the record shows the want of jurisdiction in the court to render such judgment.

When, therefore, the wife bought at the sale she bought nothing that she did not have before, her own right of survivorship. But even if the whole title had been divested by the sale she would have bought under an obligation as trustee for her husband as cotenant, and could not have ousted him in that way. She therefore acquired nothing as against him by the sale.

Coming now to the main question in the case, we are of opinion that the court below erred in holding that the estate by entireties was severed by the subsequent divorce of the husband and wife.

The subject is very bare of authorities. The law as to divorce prevented this question from arising in the earlier English cases, and in the few cases reported in this country the decisions, all more or less affected by statutes, are at variance, with no clear preponderance in either way. Lewis's Appeal, 85 Mich. 340, may be regarded as the best discussion in favor of the view that the nature of the estate is not changed, and Ames v. Norman, 36 Tenn. 683, as the best on the other side.

The question has not previously come before this court, and we are left to decide it on general principles.

An estate by entireties is one held by husband and wife by virtue of title acquired by them jointly after marriage. Being regarded as one person in law they take not in parts or shares, like joint tenants or tenants in common, but each takes the whole, or in the ancient phrase they are seized, not per mie et per tout, but per tout only. Incident to this estate as to joint tenancy is the right of survivorship, with this difference, that on the death of husband or wife the survivor takes no new title or estate; he or she is in possession of the whole from its inception. It was early held that our act of March 31, 1812, 5 Sm. L. 395, abolishing survivorship in joint tenancy, did not affect estates by entireties: Robb v. Beaver, 8 W. & S. 107 (111); and the same view has been taken of the married women's Acts of April 11, 1848, P.L. 536, and later: Diver v. Diver, 56 Pa. 106; Bramberry's Est., 156 Pa. 628.

The general subject of estates by entireties is learnedly discussed by LEWIS, C.J., in Stuckey v. Keefe's Exrs., 26 Pa. 397, our leading case. It was there held that a conveyance to husband and wife, their heirs and assigns, "as tenants in common and not as joint tenants" created an estate by entireties, and the opinion was strongly expressed that the estate arose by virtue of "a rule of law founded on the rights and incapacities of the matrimonial union" and therefore that the intention was immaterial. No subsequent case has gone so far, and in Merritt v. Whitlock, 200 Pa. 50, it was said that it may be considered as still an open question whether husband and wife may not, since the married women's property acts, take as well as hold in common if that be the clear actual intent, notwithstanding the presumption to the contrary.

The argument for the change by divorce from an estate by entireties to a tenancy in common rests on the assumption that as the basis of the estate is the unity of person, a severance of that unity carries with it a severance of the estate; that as after divorce an estate by entireties could not be created between the parties it cannot be continued. But this view fails to give due weight to the rule that the quality of the estate is...