Angleson Building Components, Inc. v. Han Soo Shin and Young Sook Shin

• Decision Date: 15 July 1983
• Docket Number: 3162,83-LW-3046
• Parties: ANGLESON BUILDING COMPONENTS, INC., Plaintiff-Appellee, v. HAN SOO SHIN and YOUNG SOOK SHIN Defendants-Appellants and KOCAB CONSTRUCTION, INC. Defendant-Appellee. C.A.
• Court: Ohio Court of Appeals

ANGLESON BUILDING COMPONENTS, INC. Plaintiff-Appellee, v. HAN SOO SHIN and YOUNG SOOK SHIN Defendants-Appellants and KOCAB CONSTRUCTION, INC. Defendant-Appellee.

No. 3162.

83-LW-3046 (11th)

Court of Appeals of Ohio, Eleventh District, Trumbull County.

July 15, 1983

APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF TRUMBULL, OHIO CASE NO. 80 CV 161.

RONALD A. DEVITO, Attorney at Law, 379 Niles Courtland Rd., S.E. Warren, OH 44484 for Plaintiff.

GILBERT L. RIEGER, Attorney at Law, 174 N. Park Ave., P.O. Box 1268 Warren, OH 44482 for Defendant.

DECISION AND JOURNAL ENTRY

QUILLIN P.J.

This cause was heard May 17, 1983, upon the record in the trial court, including the transcript of proceedings, and the briefs. It was argued by counsel for the parties and submitted to the court. We have reviewed each assignment of error and make the following disposition:

Defendants-appellants, Han Soo Shin and Young Sook Shin, appeal from the judgment of the lower court finding that defendant-appellee, Kocab Construction, Inc., had a valid and subsisting mechanic's lien against the property interest of Han Soo Shin, and issuing a decree of foreclosure and order of sale on said property. We reverse.

FACTS

Appellants Han Soo Shin and Young Sook Shin are husband and wife and owners of certain real property located in Trumbull County. On or about September 21, 1977, the Shins entered into a contract with Halchuck Construction Co. to construct a house on said real property. Kocab Construction, Inc. was awarded the sub-contract for the rough carpentry on the Shins' residence. The contract between Halchuck and Kocab provided that Kocab was to receive $16,000 for this work.

Subsequently, Halchuck Construction experienced financial difficulties and failed to pay the various subcontractors, including Kocab. Halchuck was eventually fired by Shin and another contractor was hired to complete the construction.

On August 1, 1978, Kocab Construction, Inc. filed an affidavit to obtain a mechanic's lien for furnishing labor in the construction of the Shins' residence. The affidavit states that Kocab is entitled to a balance of $11,000 for such labor.

On February 8, 1980, Angleson Building Components, Inc. instituted the within action against Han Soo Shin and Young Sook Shin for foreclosure on its mechanic's lien. Angleson's complaint joined various other lien holders, including Kocab Construction, for a determination of the priority of the liens. Kocab filed a cross-claim against the Shins joining in the plaintiff's prayer for foreclosure and sale of the Shins' property.

Angleson's claim against the Shins was settled prior to trial, as were the claims of several other lien holders. The case was tried to the court commencing March 30, 1982. The court held that the mechanic's lien of Kocab Construction Company had not been perfected against the interest of Young Sook Shin in the real estate because of Kocab's failure to properly serve a copy of the affidavit upon her as required by R.C. 1311.07. This portion of the court's order has not been appealed by Kocab.

The court further held that Kocab's mechanic's lien was a valid and subsisting lien against the interest of Han Soo Shin in the estate, and ordered that the property be sold to satisfy Kocab's lien. It is from this portion of the lower court's order which gives rise to this appeal by Han Soo Shin and Young Sook Shin.

ASSIGNMENTS OF ERROR

"1. The trial court erred to the prejudice of the appellant in ruling that the appellee has a valid and subsisting mechanic's lien on the subject real estate of the appellant.

"2. The trial court erred to the prejudice of the appellant in ruling that a decree of foreclosure and order of sale be issued against the interest of Han Soo Shin in the subject premises."

DISCUSSION

The question presented to us by the within appeal is to what extent, if any, Kocab's failure to perfect its mechanic's lien against the property interest of Young Sook Shin affects the properly perfected lien on the property interest of Han Soo Shin.

It is uncontroverted that the subject property is held by the Shins as a tenancy by the entireties pursuant to R.C. 5302.17. This statute was enacted in 1972, prior to which time Ohio did not recognize a tenancy by the entireties. Thus, there is very little case law from the courts of this state on the subject of this peculiar type of tenancy. As described by the United States Supreme Court in Lang v. Commissioner of Internal Revenue (1933), 289 U.S. 109, at 111:

"***.

"An estate by the entirety is held by the husband and wife in single ownership, by a single title. They do not take by moieties, but both and each take the whole estate, that is to say, the entirety. The tenancy results from the common law principle of marital unity; and is said to be sui generis. Upon the death of one of the tenants 'the survivor does not take as a new acquisition, but under the original limitation, his estate being simply freed from participation by the other; ...' 1 Washb. Real Prop. 6th ed. ] 912.***."

The estate is based upon the concept of marital unity; the husband and wife in an estate by the entireties are seized "per tout et non per my" - seized of the whole but not of a share. Thus, neither spouse has a separate divisible interest in the property held by the entireties; they hold the property as a single indivisible entity.®1¯

Footnote 1 . For more extensive discussion on the attributes of tenancies by the entireties, see generally: 41 American Jurisprudence 2d 58 et seq., Husband and Wife, ] 55 et seq 41 Corpus Juris Secundum 458 et seq., Husband and Wife, ] 34 et seq.; Yzenbaard, Ohio's Beleaugered Entirety Statute (1980), 49 Univ. Cin. L. Rev. 99; Comment, The Ohio Entirety Estate: Alternative Approaches to Anticipated Problems (1979), 4 Univ. Dayton L. Rev. 425; Magee, Tenancy by the Entirety: Ohio's New Estate (1974), 2 N. Ky. St. L. Forum 69.

To date, approximately twenty-five jurisdictions have recognized some form of tenancy by the entireties. Among these jurisdictions, four different views have arisen concerning the ability of creditors to deal with and reach the entireties property. These views have been classified as the "common law" rule, and "all interests" rule, the "right of survivorship" rule, and the "no interest reachable" rule.®2¯

Footnote 2 . Yzenbaard, supra.

As stated in In Re Thomas (Bank N.D. Ohio 1981), 14 B.R. 423, at 426:

"***.

"Under the common law rule, only the husband's creditors could levy upon or otherwise deal with the real property. This theory arises from the common law idea that only the husband could deal with entireties' property. Today this rule is followed by Massachusetts.

"Under the 'all interests reachable' rule creditors of either spouse may levy upon the property. This right is subject, however, to the nondebtor's right of survivorship. Creditors may reach the debtor spouse's life estate and contingent remainder in the tenancy property. C. Yzenbaard, supra.

"The 'right of survivorship' rule allows the creditor to attach the debtor's right of survivorship. Only if the debtor survives the nondebtor spouse will the creditor be able to obtain satisfaction of his debt by means of the real property.

"The fourth is the majority opinion in the United States today. Under it, when a debt is owed by only one spouse, the creditor may not attach, levy upon or sell the property held as a tenancy by the

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