Carlisle v. Parker
| Decision Date | 03 August 1936 |
| Citation | 188 A. 67,38 Del. 83 |
| Court | Delaware Superior Court |
| Parties | LESLIE L. CARLISLE v. CHARLES EDWIN PARKER and LIZZIE E. PARKER |
Superior Court for Sussex County, No. 17, April Term, 1936.
Sci Fa Sur Mortgage.
The defendants were the owners of certain real estate in Sussex County, and held the title as an estate by entireties; they gave a mortgage to the plaintiff, to secure the sum of Three thousand two hundred and fifty dollars; subsequent to the entry of the mortgage, the First National Bank & Trust Company of Milford obtained a judgment against Charles Edwin Parker, being No. 7 to October Term, 1927, for the sum of Seven hundred seventy-five dollars; the mortgage was foreclosed, and the land covered thereby was sold; after deducting the principal and interest due upon said mortgage and the costs and taxes, there remained in the hands of the Sheriff surplus proceeds of the sale, to the amount of Four thousand one hundred nineteen dollars and thirty-nine cents which has been paid into Court by the Sheriff of Sussex County.
A petition was filed by the First National Bank & Trust Company of Milford, praying that from the share of Charles Edwin Parker of the fund in Court the sum of Five hundred seven dollars and ninety-five cents, being the amount due on its judgment against the said Charles Edwin Parker, be paid to it in satisfaction of its judgment.
A petition was also filed by Charles E. Parker and Lizzie E Parker, his wife, jointly, praying that the surplus proceeds of the sale, amounting to Four thousand one hundred nineteen dollars and thirty-nine cents, be paid over to them, jointly, free and clear of any lien against Charles Edwin Parker alone.
Prayer of the petition of the husband and wife is granted, and the petition of the First National Bank & Trust Company, of Milford, is denied.
Isaac D. Short, 2d, for First National Bank and Trust Company of Milford.
Caleb M. Wright and Howard J. Cooke for Charles Edwin and Lizzie E. Parker.
OPINION
The land was held by the husband and wife as tenants by the entirety. A joint mortgage was given by them and subsequently foreclosed, the mortgage paid and the balance of the proceeds is now deposited in this court.
The first question to be determined is whether the same estate or interest exists in the proceeds of sale as had existed in the real estate prior to sale; in other words, whether the fund represented by the proceeds of sale has attached to it those peculiar attributes of an estate by entireties which had existed prior to the conversion of the land into money. In Leet v. Miller, 6 Pa. D. 725, the answer to the question was assumed from the statement that estate by entireties could exist in personal property. To us it seems that an affirmative answer to the question is shown from a joint consideration of the law governing estates by entireties and that governing executions.
At this time it is only necessary to draw attention to the inseverability of an estate by entireties. When it once exists it can not be destroyed by either of the parties (husband or wife) acting singly, but can only be terminated by the death of one, by their joint action, or by some circumstance such as divorce by which the essential unity of the parties has been destroyed. It may be suggested that the joint action of the husband and wife in the execution of the mortgage might be considered in some way as a conveyance, or as anticipating a possible foreclosure, and, therefore, as a destruction of the estate. A mortgage in Delaware is not considered as a conveyance, but as security for the payment of a debt. Malsberger v. Parsons, 1 Boyce (24 Del.) 254, 75 A. 698.
The other suggestion is not quite a direct answer to the question for, conceivably, a mortgage may exist upon the property and, subject to this mortgage, the land may be conveyed to a husband and wife as an estate by entireties. Upon the foreclosure of the mortgage and existence of a surplus of proceeds the main question would be insistent of solution.
If land is sold under a foreclosure of a mortgage the proceeds of sale must be dealt with and treated as land. 3 Freeman on Executions, § 447; Matthews v. Duryee, 45 Barb. 69.
Surplus money arising upon a sale of land under a decree of foreclosure stands in the place of the land itself or of the equity of redemption, and is regarded as realty as to those who either hold the title or who had liens upon said land.
2 Wiltsie on Mtgs., § 980; 3 Jones on Mtgs., § 2164; 2 Pingrey on Mtgs., § 2007; Servis v. Dorn, 76 N. J. Eq. 241, 76 A. 246; Davison v. MacDonald, 124 Misc. 726, 209 N.Y.S. 145.
This is the reason that judgments, other than those on which the land is sold, are paid from the proceeds and in the order of their respective priorities; this is the reason that when there has been a conveyance of the land, after the inception of the lien and before the sale, that the grantee is entitled to the surplus if there be no liens paramount to his title; this is the reason that a wife may be entitled to dower in the surplus. Cornog v. Cornog, 3 Del. Ch. 407. The latter case was in equity.
We know of no rule of law which would destroy an estate by entireties in a surplus arising from a foreclosure of a mortgage on an entirety estate. Both parties are now living and every unity of person, of time and estate which ever existed exists now.
That the estate by entireties continues in the surplus fund arising from the sale has been determined by several cases. Germania Savings Bank v. Jung (Sup.), 18 N.Y.S. 709; Stretz v. Zolkoski, 118 Misc. 806, 195 N.Y.S. 46; Servis v. Dorn, supra.
Having determined that an estate of entireties can exist in the surplus proceeds of sale of real estate theretofore held by entireties, we must address ourselves to the petitions directly presented. Two petitions to withdraw the money have been filed--one by the husband and wife (the tenants by the entirety) jointly, and the other petition is by a judgment creditor of the husband alone. The first petition must be granted unless there be merit in the second petition, or unless some rule of law otherwise prevents the granting of the petition.
There seems little dispute as to what an estate by entireties was at common law. It existed when an estate by grant or devise became vested in a husband and wife during coverture. It differs from any other estate known to the law. It may be pertinent to set out a few of the characteristics which are peculiar to it. In some respects it resembles a joint tenancy. Joint tenancy had four unities--unity of interest, unity of instrument creating it, unity of time and unity of possession. To these in an estate by entireties is added the most important unity of all--that of person. A husband and wife at common law were one person, and an estate by entireties can only exist where the relationship of husband and wife exists. A joint tenancy could exist with any number of persons. Entirety could embrace but two and these two occupy a definite relationship. Joint tenants hold by moieties--each is seized of an undivided moiety "per my et per tout." A husband and wife have no moieties--they are seized "per tout" but not "per my"; each has an entirety in the subject of the estate and such is the origin of the name.
It is not necessary here to discuss the effect that the Married Women's Act (Rev. Code 1915, c. 87, § 3047 et seq.) had on estates by entireties. This has been considered in Heitz v Sayers, 2 W. W. Harr. (32 Del.) 207, 121 A. 225. It had been held in many jurisdictions before the passage of the Married Women's Act that as the husband had a life interest in all real estate belonging to his wife. that such right gave the husband full power to manage, control and encumber the estate by entireties--but only for his life and not affecting the right of survivorship. This, however, had been changed by the Acts giving to the married woman full and free control of her own property, and...
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