Bennett v. Hutchens

• Decision Date: 03 November 1915
• Citation: 179 S.W. 629,133 Tenn. 65
• Parties: BENNETT ET AL. v. HUTCHENS ET AL.
• Court: Tennessee Supreme Court

179 S.W. 629

133 Tenn. 65

BENNETT ET AL. v. HUTCHENS ET AL.

Supreme Court of Tennessee.

November 3, 1915

Appeal from Chancery Court, Knox County; Will D. Wright, Chancellor.

Action by J. C. Bennett and others against Jefferson Hutchens and another. From an order dismissing the bill, plaintiffs appeal. Affirmed.

Noble Smithson, of Knoxville, for appellants.

A. C Grimm and W. F. Black, both of Knoxville, for appellees.

BUCHANAN J.

The action is ejectment, brought by the collateral kindred and heirs at law of Darcus Hutchens. The land in suit was conveyed to her and her husband, Jefferson Hutchens, by deed dated September 22, 1897, filed for registration and registered June 24, 1899. The land conveyed by the deed was held by the husband and wife until her death intestate and without issue in September, 1914. It was thereafter held by Jefferson Hutchens until June 22, 1915, when he, by deed conveyed it to R. L. Peters, his codefendant herein. Hutchens, we assume, was made a defendant in this suit upon the idea that, as the holder of a purchase-money lien, he was a necessary party. The defendants interposed a demurrer to the bill. The chancellor sustained the demurrer, dismissed the bill, and complainants appealed. The theory of the bill is that, upon the death of Mrs. Hutchens, complainants, as her heirs at law, became the owners of an undivided one-half interest in the land; or, in other words, the theory is that at the time of the death of Mrs. Hutchens, she and her husband were tenants in common, each owning an undivided one-half interest in the property.

The defendants insist that, under the deed to Hutchens and wife, they were seised of an estate by the entireties, and therefore that no estate in the land passed to her heirs at law upon the death of Mrs. Hutchens.

To support complainants' theory, the first insistence advanced is that the deed on its face did not purport, and did not convey, an estate by the entireties to the grantees. So far as the provisions of the deed need be noticed, they were as follows:

"This indenture, made this 22d day of September, A. D. 1897, between Rufus M. Bennett, of Knox county, in the state of Tennessee, of the first part, and Darcus Hutchens and Jefferson Hutchens, of the same county and state, of the second part, witnesseth."

Then follows a recital that the parties of the first part, for and in consideration of the sum of $1 in hand paid by the parties of the second part, the receipt of which is acknowledged, have granted, bargained, sold, and conveyed,

"and doth hereby grant, bargain, sell and convey unto the said parties of the second part the following described premises, to wit."

Here is recited a description of the land, and then:

"With the hereditaments and appurtenances thereunto appertaining, * * * except the said Darcus Hutchens and Jefferson Hutchens of the second part are to pay an annual rent of the sum of $25 to the said Rufus M. Bennett as long as he may live."

Then follow the usual habendum clause and general covenants of warranty, the testimonium clause, the signature of the grantor, signature of a witness, certificates of acknowledgment, etc., all in proper form.

The stipulation for an annual rental was part of the consideration for the deed. The bill avers that the grantees in the deed were husband and wife when it was made.

We think it is clear that this deed vested in Jefferson and Darcus Hutchens an estate by the entireties. Such a deed to persons not husband and wife, considered under the common law, would have created in the grantees an estate in joint tenancy. Each of the grantees under such a deed would have taken as individuals, one and the same interest at one and the same time by one and the same deed, and they would have held the estate conveyed by one and the same undivided possession. By the authorities it is held that a deed to husband and wife, which would at common law have created in them an estate in joint tenancy, had they not been married, does, by the fact of the marriage, create in the husband and wife an estate by the entireties. This upon the reasoning that in the eye of the law husband and wife are not separate individuals, but one person, and the estate vests in them as an entirety. In legal contemplation, each of them is seised of the whole estate, and the death of one of them does not put an end to the seisin of the survivor, because his or her original seisin was of the whole, and not of part, of the estate.

It is immaterial that the deed in the present case did not on its face name the grantees as husband and wife; nor is it material that we find in the deed no words used to indicate a purpose in the grantor to create an estate by the entireties; nor a purpose in the grantees that such an estate should be conferred upon them. The estate, by the entireties, upon the execution of the deed, depended on the unity of the husband and wife, under the common law.

"If an estate be given to a man and his wife they are neither properly joint tenants nor tenants in common; for husband and wife being considered as one person in law, they cannot take the estate by moieties but both are seized of the entirety, per tout, et non per my; the consequence of which is that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor." 2 Bla. Com. 182.

"The authorities agree that 'the same words of conveyance which would make two other persons joint tenants will make a husband and wife tenants of the entirety, so that neither can sever the jointure, but the whole must accrue to the survivor.' " Cole Manufacturing Co. v. Collier, 95 Tenn. (11 Pick.) 116, 117, 31 S.W. 1000, 30 L. R. A. 315, 49 Am. St. Rep. 921.

"The properties of a joint estate are derived from its unity, which is fourfold--the unity of interest, the unity of title, the unity of time, and the unity of possession; or, in other words, joint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession." 2 Bla. Com. 180.

Generally on the same subject, see the following of our cases: Taul v. Campbell, 15 Tenn. (7 Yerg.) 319, 27 Am. Dec. 508; Ames v. Norman, 36 Tenn. (4 Sneed) 683, 70 Am. Dec. 269; Johnson v. Lusk, 46 Tenn. (6 Cold.) 114, 98 Am. Dec. 445; Berrigan v. Fleming, 70 Tenn. (2 Lea) 271; Shields v. Netherland, 73 Tenn. (5 Lea) 193; McRoberts v....