Ames v. Norman

• Decision Date: 31 December 1857
• Citation: 36 Tenn. 683
• Parties: ANNA AMES v. THOMAS NORMAN et al.
• Court: Tennessee Supreme Court

36 Tenn. 683

ANNA AMES

v.THOMAS NORMAN et al.

Supreme Court of Tennessee.

December Term, 1857.

FROM WILSON.

This bill was filed in the chancery court at Lebanon in April, 1855. The complainant, as the wife of one William Ames, seeks for a divorce from the bonds of matrimony, on the ground of cruel treatment from her said husband; she prays also that a tract of land described in the bill be decreed to her as her absolute estate. It seems that the complainant and her husband held this land under a joint conveyance in fee to both, made after their marriage. It was levied upon and sold to satisfy an execution against her husband, and was bought by Alfred Hunt, from whom defendant Norman redeemed it as a judgment creditor. It is alleged in the bill that the land was bought by the complainant, and was paid for at her request by her husband in money derived by inheritance from her father's estate; that she requested her husband to have the title made to her, which he promised to do, but that he had instead thereof caused the title to be made to her jointly with himself. It seems from the proof that the money in question was reduced to possession by the husband before the payment aforesaid. The defendant William Ames failed to answer the bill; and at the July term, 1855, a decree was rendered dissolving the marriage relation between him and the complainant. The answer of the defendant Norman insists that he has a right to at least half of the land; if not by his redemption from Hunt, yet, being a creditor of Ames, he has a right to claim payment of his debt out of one-half of the land, and he prays to have it sold for that purpose. At the January term, 1856, Chancellor Ridley rendered a decree for the complainant, settling the entire tract of land upon her in her absolute right, free from all debts of her husband. The defendant Norman appealed. Both the complainant and her late husband were living at the time the opinion of this court was announced.

William L. Martin, for the complainant:

The complainant insists that she is entitled to the whole of said land for several reasons:

1. The land was purchased with her money, to which her husband never set up any claim, and the deed shows upon its face that her money paid for it.

2. The deed having been made to husband and wife, they did not hold as joint tenants nor tenants in common, but by entireties. No alienation by the husband could defeat the right of the wife to the whole, provided she survives him. The conveyance to husband and wife is in legal contemplation a conveyance to but one person. The law is well settled that where land is conveyed to husband and wife, they hold by entireties and not as joint tenants or tenants in common, and that the survivor is entitled to the whole. If this be so, then the husband has no power to convey the land or any portion of it, nor has he any interest which he can sell except with the consent of his wife. if he has no transferrible interest, then the purchaser at the sheriff's sale acquired no title by his purchase, and the sale was therefore void upon the same ground. If he had no transferrible interest, his creditors can not have the land or any portion of it sold, because he has no divisible interest; and the court has no power to order the sale of any part, for the title is a unit.

3. The court having pronounced a divorce a vinculo, does not sever the interest, but the court may divest the husband of his indivisible interest, and settle it upon the wife as alimony, particularly in this case, where the land was purchased with the wife's money.

4. Defendant Norman has extinguished his debt by bidding it upon the land. This he did at his own risk. See Taul v. Campbell, 7 Yerg., 332; Shaw et al. v. Hearsey et al., 5 Mass., 321; 2 Kent, 131, 132.

R. Hatton, for the defendant:

It is insisted for complainant that the money which paid Sypert for the land in controversy was derived from her father's estate, and that this fact constitutes in her an equity to have said land settled upon her, superior to the rights of her husband's creditors. The chancellor so decreed; as we insist, erroneously.

The fund, before it was invested in the land, had been reduced to possession by the husband of complainant. Sypert's deposition shows that William Ames had used this money in paying for some land he had purchased of Horne. The trade with Horne being cancelled, the money was paid back to William Ames, and by him loaned to Sypert. Was this not a reduction to possession? If so, did it not become his absolutely? This can not be controverted. A court of chancery could not have taken it from him and settled it upon complainant. No case can be found going so far as to decree a provision for the wife after the husband or his assignee had reduced it to possession. Dearin v. Fitzpatrick, Meigs, 559, 560; 2 Kent's Com., 7th ed., 123. After the husband has, jure mariti, acquired possession of her personal estate, though it should have been of an equitable character, he will be left in the undisturbed possession of it by the courts. Howard v. Moffat, 2 Johns. Ch., 206;Fry v. Fry, 7 Paige, 462;Van Eppes v. Van Deusen, 4 Id., 64.

But it is insisted that complainant kept the money in her possession; had it part of the time, after it was delivered to her by her husband, the defendant William Ames, hid in the ground; and that she loaned it to Sypert. Suppose this is true; is not the possession of the wife the possession of her husband?

It is said that defendant William Ames promised to have the deed for the land made to her, and that his failure to do so was a fraud upon her rights. She had no legal right to have the title made to her; no equitable right that a court of chancery would have recognized. If defendant William, then, made any such promise to her, his violation of the promise may have been bad in morals; yet, as it was a matter purely of discretion with him, it constituted no fraud in law.

The deed for the land was made to defendant William Ames and to the complainant, his wife. The effect of such a deed at common law is well settled. It vests in the husband and wife the title to the land, not as joint tenants, not as tenants in common, but both are seized of the entirety. They do not take by moieties, but as one person. The survivor takes the whole estate. 2 Bla. Com., 182; 2 Kent's Com., 110, 7th ed.; 1 Preston on Estates, 131. Nor has our statute of 1784, abolishing joint tenancies, altered the common law in reference to the character of the estate held under such a conveyance. In the case of Taul v. Campbell, 7 Yerg., ??19, it is declared that in a conveyance of land in fee to husband and wife, they take the estate by entireties; neither is seized of a moiety, but both, forming one legal person--as a corporation-- are seized of the whole, and upon the death of one, the entire estate, which was before joint, is vested solely in the survivor.Yet, whilst it is admitted that this is the effect of such a deed in Tennessee, we still insist that defendant William Ames had such an interest in this land as could be subjected to the payment of his debts. That his estate in it was a legal estate must be admitted. If then, it could be subjected to the payment of his debts, it could be done by levy and sale. But could it be so subjected? If his interest could not be, of course hers could not. And if neither, what would be the consequence? A man and wife might hold vast estates in land, whilst they were largely indebted; and their creditors would be unable to make a cent of their debts. Such a thing would be an anomaly. What interest, then, has the husband which can be made liable for his debts? In the case of Jackson v. McConnell, 19 Wend., 175, it is held that the husband, where he and wife hold thus by entirety, though he can not alien the whole estate, may mortgage his interest, or make a lease in his own name, or join with his wife. In the case of Taul v. Campbell, Judge Catron quotes the language of the supreme court of Kentucky in the case of Rogers v. Grider, as follows: “It is agreed by all the authorities that neither husband nor wife can by common law make any alienation of an estate conveyed to them during coverture, so as to affect the entire right of the other on his or her surviving.” This language evidently conveys the idea that the husband might convey some estate in the land, though as the wife, in the event of her surviving her husband, would be entitled to the whole by survivorship, he could not make such a conveyance as would conflict with this right after his death. What, then, would be the largest estate he could convey? His interest for life, which upon his wife's death, if he survivd her, would become an absolute estate in the land. To this extent, we think, his estate in the land would be subject to execution. He could not convey away what was not his. What was his, if legal estate, was subject to execution.

Defendant Hunt's levy on the land in controversy was, then, good, at least to the extent of defendant William's life estate in the land. To that extent the sale was good to pass the title to the purchaser, and consequently to Norman, who was a judgment creditor of William Ames, and who redeemed from Hunt. This, we insist, would have been the case if there had never been any divorce of complainant from defendant William Ames.

But by an interlocutory decree in this case complainant was divorced from defendant William. In this decree nothing is said of alimony. What was the effect of this decree as to the properties of the legal person holding the land? Both are alive. They are not, however, man and wife, and thereby regarded as one person. They are as separate and distinct individuals as any other two citizens. The title has not been divested out of either by the decree, but is still in both. The fiction that made them hold as one person in legal contemplation has no longer any application to them. They must,...