Cole Mfg. Co. v. Collier

• Decision Date: 06 June 1895
• Citation: 31 S.W. 1000,95 Tenn. 115
• Parties: COLE MANUF'G CO. v. COLLIER et ux.
• Court: Tennessee Supreme Court

31 S.W. 1000

95 Tenn. 115

COLE MANUF'G CO. v. COLLIER et ux.

Supreme Court of Tennessee.

June 6, 1895

Appeal from chancery court, Shelby county; John L. T. Sneed Chancellor.

Bill by the Cole Manufacturing Company against W. A. Collier and wife for the possession of land. From a decree for plaintiff defendants appeal. Reversed.

Smith & Trezevant and Metcalf & Walker, for appellants.

Thomas H. Jackson and D. E. Myers, for appellee.

BEARD J.

In 1886, a deed, reciting a valuable consideration, was made and delivered to the defendants. W. A. and Alice T. Collier conveying to them, as husband and wife, the real estate which is the subject of this suit. Some time thereafter the complainant corporation, being a judgment creditor of the husband, caused an execution to be issued and levied on the latter's interest in this real estate, and, at the sale subsequently made by virtue of this levy, became a purchaser of the same. Having received a deed from the sheriff, this bill was filed, seeking the aid of the chancery court to eject Collier and wife from, and to place complainant in possession of, the entire property.

The first question presented for our consideration is, what interest did these defendants take under the deed of 1886? As it, by express terms, conveyed this property to these two grantees as husband and wife, it is conceded that its legal effect is to create in them an estate by the entirety, unless it be that a limitation imposed upon the tenure of Mrs Collier, should she outlive her husband, is sufficient to change the character of this estate. The clause in the deed in which this limitation is found is in these words, viz. "In the event she shall survive the said William A. Collier, she shall have the use and enjoyment of said land and improvements, and the rents, issues, and profits thereof; and at her death the estate in remainder is to go to her children by the said W. A. Collier." No limitation is imposed by this deed upon the right of survivorship of either the husband or the wife. The longest liver, as between them, will take the whole. The limitation is upon the estate of the wife after she has taken by survivorship, and is then operative only in the event she should die leaving children of herself and W. A. Collier surviving. In other words, a fee in an estate by entirety is granted to Collier and wife; but the wife's fee is determinable alone upon the event indicated, she in the meantime having outlived her husband. Such a limitation does not alter or modify the estate which the granting words have created.

In Coke on Littleton (section 285), in speaking of joint tenancy, it is said: "If lands be given to two, and to the heirs of one of them, this is a good joynture, and the one hath a freehold and the other a fee simple; and, if he who hath the fee dieth, he which hath the freehold shall have the entiretie by survivor for term of life. They are joint tenants for life, and the fee simple is in one of them." And 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." Green v. King, 2 W. B1, 1213; Martin v. Jackson, 27 Pa. St. 504; Bank v. Gregory, 49 Barb. 155, Den v. Hardenbergh, 10 N. J. Law, 42; 3 Jarm. Wills, 120.

The estate thus granted being one estate by entirety, what right did complainant get by its purchase of the husband's interest? That complainant could cause its execution to be levied on this interest, and purchasing at this sale, under this levy, could place itself so far in the room and stead of the execution debtor that, if unredeemed, it would ultimately come into possession of the whole should the husband outlive the wife, is settled law in this state. Ames v. Norman, 4 Sneed, 683.

Complainant however, insists that, having the sheriff's deed, it is entitled to immediate possession of the whole estate, though the wife is still alive; and it is urged that this is equally settled by our decisions. This makes necessary an examination of the cases relied upon by complainant as authority for this position. Ames v. Norman, supra, is the leading case. The facts there were that a deed made to a husband and wife created in them an estate by entirety in certain realty. During marriage, the husband's interest in this property was levied upon and sold. Subsequently, the wife filed her bill against her husband for divorce, and joined with him, as a defendant, Norman, who, as a judgment creditor, had redeemed from the execution purchaser. This was done for the purpose of obtaining a decree canceling or extinguishing Norman's title, and having the land settled upon complainant. The decree thus asked for was passed by the chancellor, and Norman brought the case to this court for review. A careful reading of the reporter's synopsis of the pleadings and evidence, as well as of the briefs of the respective counsel, fails to discover any intimation that Norman was in possession of the land in controversy, or that complainant was out of possession. It is certain that, so far as the redeeming creditor was concerned, this suit was purely defensive,-a defense on his part limited to the title acquired by him as the result of the execution sale. He did not by cross bill or otherwise, so far as the reporter's notes or the argument of counsel indicate, set up a claim to possession or to rents and profits. The stress of his contention was that a husband had a leviable interest in an estate by entirety, which passed to the purchaser at an execution sale, and through him to the redeeming creditor, and that the interest thus acquired by the latter was not affected by the subsequent divorce of the husband and wife. These were the only points involved in that case, and this court, upon abundant authority, resolved both of them in favor of Norman, and reversed the chancellor in so far as he had held otherwise. It...