Brownley v. Lincoln County

• Decision Date: 09 September 1959
• Citation: Brownley v. Lincoln County, 343 P.2d 529, 218 Or. 7 (Or. 1959)
• Parties: Lois Maxine BROWNLEY, Respondent, v. LINCOLN COUNTY, a Municipal Corporation, Defendant, and State Unemployment Compensation Commission, Appellant.
• Court: Oregon Supreme Court

Page 529

343 P.2d 529

218 Or. 7

Lois Maxine BROWNLEY, Respondent, v. LINCOLN COUNTY, a Municipal Corporation, Defendant, and State Unemployment Compensation Commission, Appellant.

Supreme Court of Oregon, Department 1.

Argued July 8, 1959.

Decided Sept. 9, 1959.

Harry G. Spencer, Asst. Atty. Gen., argued the cause for appellant. With him on the brief were Robert Y. Thornton, Atty. Gen., and E. Nordyke and Roland V. Brown, Asst. Attys. Gen.

Harry G. Hoy, Ocean Lake, argued the cause and filed a brief for respondent.

Before McALLISTER, C. J., and PERRY, O'CONNELL and CRAWFORD, JJ.

O'CONNELL, Justice.

This is a suit in equity brought by the plaintiff to quiet her title to certain land in Lincoln County against defendants Lincoln County and the State Unemployment Compensation Commission. A default judgment was entered against the defendant, Lincoln County, from which it does not appeal. The lower court entered a decree for the plaintiff against the defendant State Unemployment Compensation Commission, the effect of which is to defeat the commission's lien arising out of a judgment obtained against plaintiff's former husband.

The commission obtained a money judgment against Leo G. Brownley on March 1, 1954. The judgment was duly docketed in Lincoln County on the same day. No effort was made by the defendant to obtain a levy of execution upon its judgment. At the time the judgment was docketed Leo G. Brownley and the plaintiff, Lois Maxine Brownley, were husband and wife and were owners as tenants by the entirety of the land which is the subject of plaintiff's suit to quiet title.

After the entry of the judgment the plaintiff brought a suit for divorce against Leo G. Brownley and on May 2, 1955 a decree dissolving the marriage was entered. The court also awarded the plaintiff all the right, title and interest of Leo G. Brownley in the land in question.

On July 24, 1956 the plaintiff brought the present suit, seeking to quiet her title in the land awarded to her in the divorce from the alleged lien of the judgment entered in favor of the commission. The defendant demurred to the complaint. The demurrer was overruled, whereupon the case was submitted to the trial court upon stipulated facts which we have recited above. The trial court entered a decree quieting the plaintiff's title against the defendant commission's judgment lien.

We have recognized in this state a form of concurrent ownership in real property by husband and wife which we have denominated a tenancy by the entirety. Dahlhammer and Roelfs v. Schneider, 1953, 197 Or. 478, 252 P.2d 807; Ganoe v. Ohmart, 1927, 121 Or. 116, 254 P.2d 203; Stout v. Van Zante, 1923, 109 Or. 430, 219 P. 804, 220 P. 414; Noblitt v. Beebe, 1882, 23 Or. 4, 35 P. 248. It is not in all respects the same as a tenancy by the entirety at common law and, in fact, for some purposes might more aptly be described as a 'tenancy in common with an indestructible right of survivorship.' 4 Powell on Real Property, § 623, p. 667.

However, we have recognized that the title held by tenants by the entirety is a single title representing the whole interest in the land and that this is vested in each tenant subject to defeasance by his death prior to that of his cotenant. Wenker v. Landon, 1939, 161 Or. 265, 88 P.2d 971; Klorfine v. Cole, 1927, 121 Or. 76, 252 P. 708, 254 P. 200. We say that upon the death of one spouse the estate does not pass to the survivor but continues in the surviving spouse free of the interest of the deceased spouse. Wenker v. Landon, supra; Schafer v. Schafer, 1927, 122 Or. 620, 260 P. 206, 59 A.L.R. 707.

Although tenants by the entirety are held to be vested with a single title our legislation and cases have modified the common-law theory of the unity of ownership to the extent that each is regarded as the separate owner of one half the rents and profits and each spouse has the power to convey or encumber the whole title subject to the right of survivorship in the other spouse. Ganoe v. Ohmart, supra; Klorfine v. Cole, supra; Howell v. Folsom, 1900, 38 Or. 184, 63 P. 116. However, if one spouse conveys or encumbers his interest in the estate the grantee or encumbrancer has a right during coverture only to the grantor's share of the rents and profits. Howell v. Folsom, supra. In such cases it is proper to say that the interest conveyed by the granting spouse vests in the grantee or encumbrancer subject to the other spouse's contingent right of survivorship. If the grantor should predecease his spouse the interest of the grantee or encumbrancer in the estate ceases; but if the grantor survives his spouse then the surviving spouse's interest, freed from the interest of his cotenant, remains vested in the grantee or encumbrancer. Howell v. Folsom, supra.

The same results obtain where the interest claimed by a third person in the estate of one spouse was acquired, not by voluntary conveyance, but by the legal devices available to creditors for reaching the interest of a debtor spouse. Ganoe v. Ohmart, supra; Klorfine v. Cole, supra.

In the present case the defendant commission, in docketing the judgment against Leo G. Brownley, obtained a lien upon his interest in the land in question. ORS 18.350(1). That lien gave the defendant priority over the interest of third persons arising subsequent to the docketing of the judgment. ORS 18.370; Davidson v. Richardson, 1907, 50 Or. 323, 89 P. 742, 91 P. 1080, 17 L.R.A.,N.S., 319, 126 Am.St.Rep. 738; Kaston v. Storey, 1905, 47 Or. 150, 80 P. 217, 114 Am.St.Rep. 912; Meier v. Kelly, 1892, 22 Or. 136, 29 P. 265. The sole question for our determination is whether the plaintiff acquired an interest in the land through the award made in the divorce proceeding in which event the defendant's lien, being prior in time, would have priority, or whether plaintiff's interest existed prior to defendant's lien and the award in the divorce proceeding merely eliminated the interest of Leo G. Brownley.

Had the court in the divorce proceeding made no award to the plaintiff of her husband's interest in the land the decree dissolving the marriage clearly would have resulted in converting the tenancy by the entirety into a tenancy in common. Morrow v. Morrow, 1949, 187 Or. 161, 210 P.2d 101; Siebert v. Siebert, 1948, 184 Or. 496, 199 P.2d 659; Fuller v. Fuller, 1944, 175 Or. 136, 151 P.2d 979; Wilhelm v. Wilhelm, 1928, 126 Or. 388, 270 P. 516; Schafer v. Schafer, supra. However, the plaintiff contends that under ORS 107.100(4) a decree of divorce need not have the effect of converting a tenancy by the entirety into a tenancy in common. This subsection provides as follows:

'Whenever a marriage is declared void or dissolved, the court shall make such division or other disposition between the parties of the real or personal property, or both, of either or both of the parties as may be just and proper in all the circumstances, in addition to any further relief decreed as provided for in subsections (1), (2) or (3) of this section.'

The plaintiff argues that the trial court has power under the foregoing subsection to make a disposition of property held by the entirety by declaring in effect that the interest of one spouse (Leo Brownley in this case) is at an end. This, it is contended, has the same effect as the cessation of a tenant's interest by death in which case it is undisputed that the lien of the judgment would cease to attach to the interest exclusively in the survivor.

It is admitted by the plaintiff that prior to the 1947 amendment of ORS 107.100 the necessary effect of divorce was to sever the title to land held by the entirety and create in the parties a tenancy in common. We find nothing in the language of the amendment itself or in the legislative purpose in enacting the amendment to indicate an intent to change this rule. Prior to the amendment the prevailing party was entitled to a one third part of the land of the other party. § 9-912, O.C.L.A. as amended, Oregon Laws 1941, ch. 407, p. 694. The 1947 amendment gave the trial judge discretion to fit the amount to the circumstances of each case. It is quite probable that the amendment was felt necessary in view of the fact that at the same session a community property law was enacted which provided that upon dissolution of a marriage the husband and wife would be vested with an undivided one half interest in the community property and that they would 'have such rights in other property as are provided by the laws of this state.' Oregon Laws 1947, ch. 525, § 11. It is possible also that the legislature intended to avoid the construction placed upon the prior act in Schafer v. Schafer, supra, where we held that a successful party in a divorce action was precluded from taking an interest in the losing party's share of an estate by the entirety.

Were we inclined to rest our decision upon an interpretation of the language of the statute as amended we would find defendant's argument more appealing. It calls our attention to the fact that ORS 107.100 provides that 'Whenever a marriage is declared void or dissolved, the court has power further to decree as follows * * *.' (Italics supplied). Subsection (4) then also provides that the disposition of the property by the court is made 'in addition to' the relief specified in preceding sections. This language is pointed to by the defendant as evidencing an intent to regard the disposition of property as the exercise of a power which follows in point of time after the exercise of the power resulting in the dissolution of the marriage. Applying this idea, the defendant argues that since the divorce court could not award to the plaintiff Leo Brownley's interest in the property until after the marriage was dissolved, the tenancy in common must have been first created and, therefore, the decree awarding the property to the plaintiff had the effect of transferring Leo Brownley's interest to her, but only after the lien of the...