Baker v. Stewart

• Decision Date: 08 December 1888
• Citation: 40 Kan. 442,19 P. 904
• Parties: FRANK A. BAKER v. MARY E. STEWART
• Court: Kansas Supreme Court

19 P. 904

40 Kan. 442

FRANK A. BAKER v. MARY E. STEWART

Supreme Court of Kansas

December 8, 1888

Error from Franklin District Court.

THIS was an action brought by Mary E. Stewart in the district court of Franklin county, against Frank A. Baker, to recover damages for an alleged breach of certain covenants contained in a general warranty deed executed by Baker and wife to the plaintiff for certain lands situated in that county. Trial at the October term, 1886. A jury was waived, and the case was submitted to the court upon the following agreed statement of facts:

"1. Joshua Baker, being the owner in fee simple of the said land in controversy, on the 23d day of November, 1877, together with his wife Elizabeth, conveyed the same by deed of general warranty of that date, to Frank A. Baker and Alice Baker which said deed was duly recorded May 9, 1881.

"2. At the time of said conveyance, said Frank A. Baker and Alice Baker were husband and wife, and resided in the state of Kansas.

"3. Prior to the 3d day of October, 1881, the said Alice Baker died, leaving surviving her as her heirs at law, her said husband and two children born of said marriage, to wit, Mary E. Baker, born in 1877, and Annie A. Baker, born in 1880 both of said children now residing with their said father.

"4. On the 3d day of October, 1881, the said Frank A. Baker and Okie Baker his wife, (said Frank having remarried,) conveyed by deed of general warranty the lands in controversy to the plaintiff, Mary E. Stewart, which deed was duly recorded on the 3d day of October, 1881.

"5. No conveyance, by order of the court or otherwise, has ever been made or obtained, to divest the interest of the said minor children in said lands, if any interest said children inherited from their said mother, Alice Baker; and it is agreed that the only question in this case is, upon the death of said Alice Baker, did the surviving husband, Frank A Baker, inherit the entire estate, or did the said children of Alice Baker inherit any interest in said premises."

Upon this agreed statement of facts, the court below rendered judgment in favor of the plaintiff and against the defendant for the sum of $ 800 and costs of suit. To reverse this judgment, the defendant, as plaintiff in error, brings the case to this court.

Judgment reversed.

William H. Clark, for plaintiff in error.

C. B. Mason, for defendant in error.

VALENTINE J. JOHNSTON, J., concurring. HORTON, C. J., dissenting.

OPINION

VALENTINE, J.:

It appears that on November 23, 1877, Joshua Baker and his wife Elizabeth Baker, who owned certain real estate in Franklin county, conveyed the same by a general warranty deed to their son Frank A. Baker and his wife Alice Baker, which deed was duly recorded. Afterward, and prior to October 3, 1881, Alice Baker died, leaving surviving her her husband, and two children born during the marriage. Upon these facts, and some others not necessary to mention, the main question arising in the case, and the one now presented to this court, is whether, on the one side, the foregoing deed conveyed the foregoing real estate to Frank A. Baker and his wife as tenants in common, or whether, on the other side, it conveyed it to them as joint tenants or tenants in entirety. If the deed conveyed the land to Frank A. Baker and his wife as tenants in common, then the decision of the court below is correct, and must be affirmed; but if it conveyed it to them either as joint tenants or as tenants in entirety, then such decision is admitted to be erroneous. The real question, stated more explicitly, is this: At the death of Alice Baker, who took the foregoing real estate? Did Frank A. Baker, as the survivor of the two, and as one of two joint tenants or tenants in entirety, take the whole of the estate, or did he, as a tenant in common with his wife, take only the one-half thereof, and leave his wife's heirs to take the other half? No question has ever been presented in this case as to who had the right to control the property during the joint lives of Frank A. Baker and his wife, or whether either, or both together, could have legally sold the same, or any interest therein, during that time. These matters, however, will be considered to some extent hereafter. We suppose it will be admitted that a deed might be executed to a husband and wife which would convey to them, if the language of the deed explicitly said so, any one of the foregoing estates -- that is, an estate in common, or a joint tenancy, or a tenancy in entirety -- for such has always been the law, and property owners can generally convey their property just as they please.

Walker, J., however, in the case of Smith v. Smith, 30 Ala. 642, 643, used the following language:

"The reason why, under a conveyance to husband and wife, they did not take either as joint tenants or tenants in common, is, that they were, according to the principles of the common law, incapable of so taking."

Mr. Bishop, in his work on Married Women, volume 2, § 285, criticises this language as follows:

"Let us pause to say that the majority of legal persons would probably deny this proposition of the learned judge; because, as we saw in the first volume, [vol. 1, §§ 616, 618,] husband and wife, if they were joint tenants or tenants in common before marriage, continue to be the same after marriage, and do not become tenants by the entirety of the estate, which shows them to be capable of holding as tenants in common or as joint tenants; and it is perhaps the better doctrine at the common law, that a conveyance to them after marriage may, by express words, create in them either of these two tenancies."

Mr. Washburn, in his work on Real Property, volume 1, p. *425, uses the following language:

"It is always competent, however, to make husband and wife tenants in common, by proper words, in the deed or devise by which they take, indicating such an intention."

Chancellor Kent, in his Commentaries, volume 4, p. *363, uses the following language:

"It is said, however, to be now understood that husband and wife may, by express words, be made tenants in common by a gift to them during coverture."

(See also McDermott v. French, 15 N.J.Eq. 78, 80.) Certainly a husband and wife may be made tenants in common by a separate deed to each, conveying to each a separate moiety of the estate. This may also be accomplished by a separate conveying clause as to each in the same deed; and certainly no good reason can be given why the same thing might not be accomplished by any express words in a single deed executed to the two together, showing the intention of the parties to be that the husband and wife should take the estate as tenants in common; but it would require express words, or words strongly implying such an intention. Without such words, the estate conveyed would be an estate in entirety. We suppose it will also be admitted that the deed in the present case would at common law have conveyed the property in entirety to Frank A. Baker and his wife Alice Baker, and would not have conveyed it to them as ordinary joint tenants or as tenants in common. We suppose it will also be admitted that if the deed in the present case conveyed the estate to Frank A. Baker and his wife, either in entirety or as joint tenants, then that Frank A. Baker, as the survivor of the two, was, at the death of his wife, entitled to the land, and the defendant in error, plaintiff below, should not recover in this action. But if the deed did not so convey such estate, and conveyed the same to Baker and wife purely, solely and entirely as tenants in common, then the plaintiff in error, defendant below, was not, at the death of his wife, entitled to the land, and the defendant in error, plaintiff below, should recover in this action. Almost all authority is in favor of the theory that such deed conveyed an estate in entirety to Frank A. Baker and wife, and that he, as the survivor of the two, was, at the death of his wife, entitled to the entire estate. Among the decided cases supporting this view of the case are the following: Myers v. Reed, (U. S. C. C. of Ore.) 17 F. 401; Gibson v. Zimmerman, 12 Mo. 385; Garner v. Jones, 52 id. 68; Hall v. Stephens, 65 id. 670; Robinson v. Eagle, 29 Ark. 202; Harding v. Springer, 14 Me. 407; Brownson v. Hull, 16 Vt. 309; Shaw v. Hearsey, 5 Mass. 520; Fox v. Fletcher, 8 id. 274; Draper v. Jackson, 16 id. 480; Wales v. Coffin, 13 Allen 213; Pierce v. Chace, 108 Mass. 254; Pray v. Stebbins, 141 id. 219; same case, 55 Am. Rep. 462; Bertles v. Nunan, 92 N.Y. 152; same case, 44 Am. Rep. 361; Zorutlein v. Bram, 100 N.Y. 12; Kip v. Kip, 33 N.J.Eq. 213; Buttlar v. Rosenblath, 42 id. 651; same case, 9 A. 695; Bates v. Seely, 46 Pa. 248; Diver v. Diver, 56 id. 106; French v. Mehan, 56 id. 286; McCurdy v. Canning, 64 id. 39; Fleek v. Zillhaver, 117 id. 213; same case, 12 A. 420; Hannan v. Towers, 3 H. & J. 147; Marburg v. Cole, 49 Md. 402; same case, 33 Am. Rep. 266; Den v. Whitemore, 2 Dev. & Bat. Law 537; Den v. Branson, 5 Ired. Law 426; Woodford v. Higly, (1 Winst. 237,) 60 N.C. 234; Doe v. Garrison, 1 Dana 35; Banton v. Campbell, 9 B. Mon. 587, 594; Babbit v. Scroggin, 1 Duv. 272; Taul v. Campbell, 7 Yer. 319; Ames v. Norman, 4 Sneed (Tenn.) 683; Berrigan v. Fleming, 2 Lea 271; Hemingway v. Scales, 42 Miss. 1; same case, 2 Am. Rep. 586; McDuff v. Beauchamp, 50 Miss. 531; Allen v. Tate, 58 id. 585; Ketchum v. Walsworth, 5 Wis. 95; Bennett v. Child, 19 id. 362; Fisher v. Provin, 25 Mich. 347; AEtna Ins. Co. v. Resh, 40 id. 241; Manwaring v. Powell, 40 id. 371; Jacobs v. Miller, 50 id. 119; Bevins v. Cline, 21 Ind. 37, 41; Davis v. Clark, 26 id. 424; Arnold v. Arnold, 30 id. 305; Falls v. Hawthorne, 30 id. 444; Simpson v. Pearson, 31 id. 1; Chandler v....