Ganoe v. Ohmart

• Citation: 121 Or. 116,254 P. 203
• Parties: GANOE v. OHMART.
• Decision Date: 22 March 1927
• Court: Supreme Court of Oregon

254 P. 203

121 Or. 116

GANOE v. OHMART.

Supreme Court of Oregon

March 22, 1927

Department 1.

Appeal from Circuit Court, Multnomah County; George Rossman, Judge.

Action by H. L. Ganoe against Junius V. Ohmart. Judgment for plaintiff. Defendant's motion for an order to quash the levy of execution and recall the judgment was granted, and plaintiff appeals. Reversed and remanded for further proceedings.

February 17, 1923, plaintiff recovered judgment against defendant in the circuit court for Multnomah county. Plaintiff caused execution to issue on said judgment and the interest of the defendant in lot 3, block 10, Council Crest Park, Portland Or., to be levied upon, and advertised for sale by the sheriff of said county. The sale was set for October 20 1924, at 10 o'clock, in manner and form prescribed by law. A few days before the day fixed for the sale, defendant filed a motion for an order to quash the levy of execution against said property, to recall said execution against said lot, and to annul and to set aside all proceedings taken thereunder, for the reasons that said execution, levy, and other proceedings to sell said lot are wrongful and unlawful as to said particular estate because the title thereto is vested in fee in defendant and his wife by the entirety. The motion was allowed by the circuit court, the writ of execution in as far as it affected said lot was quashed recalled, and vacated, and all other proceedings looking toward the sale thereof were annulled, set aside, and vacated. It was further ordered that the sheriff be and "is hereby directed to cancel and release said levy and writ of execution upon the above described real estate, and cancel and withdraw any publications and postings of notices of such sale of said property." From this order plaintiff appeals to this court. The only question to be determined is:

"Can a husband's right to real property held by husband and wife by the entirety be sold in this state on execution issuing from a judgment against the husband alone."

L. E Schmitt, of Portland (L. E. Schmitt and H. L. Ganoe, both of Portland, on the brief), for appellant.

W. O. Sims, of Portland (W. O. Sims and Junius V. Ohmart, both of Portland, on the brief), for respondent.

COSHOW, J. (after stating the facts as above).

That land conveyed to husband and wife by one instrument constitutes them tenants by the entirety, unless the conveyance manifests a different intention, has become the settled law of this state. This is a rule of property not to be changed, except by the legislative department of the state. Dodd v. First National Bank of Eugene, 117 Or. 691, 245 P. 504; Twigger v. Twigger, 110 Or. 520, 534, 223 P. 934; Stout v. Van Zante, 109 Or. 430, 219 P. 804, 220 P. 414; Chase v. McKenzie, 81 Or. 429, 433, 159 P. 1025. This rule was first announced in Noblitt v. Beebe, 23 Or. 4, 35 P. 248, and has been consistently followed ever since.

Under the common law, the husband had the use of the estate as his sole property during the existence of the marriage. He could sell the products of the land and the proceeds of such sale were his own absolutely. He could lease and otherwise incumber it. He could sell his interest and transfer the possession. His grantee or alienee took title thereto subject to the right of survivorship in his wife. If the husband survived his wife, his grantee in fee was vested with a fee title. His judgment creditors could seize and sell the land on execution with like effect. 30 C.J. 567, § 101; 13 R.

C. L. 1123 et seq., §§ 142-146; Id. 1127, 1128, §§ 147, 148, and authorities cited under note 13; 17 R. C. L. 169, n. 19; Anderson's Dict. Law, 403; Buttlar v. Rosenblath, 42 N. J. Eq. 651, 9 A. 695, 59 Am. Rep. 52, 56; Hiles v. Fisher, 144 N.Y. 306, 39 N.E. 337, 30 L. R. A. 305, 43 Am. St. Rep. 762 et seq., and exhaustive note.

No act or conduct of the husband could deprive his wife of her interest in the estate. Her interest in the fee was the same as his. The only difference was in the issues, profits, and rents which belonged to the husband by right of the marriage. The usufruct of the land belonged to the husband. Both alike owned the entire estate. Neither could convey the fee without the other joined. Cooley's Blackstone (4th Ed.) 582, 583. This we understand to mean that neither could convey the fee so as to deprive the other of her or his right of survivorship. 13 R. C. L. 1123, § 142; 13 R. C. L. 1125, § 144; 17 R. C. L. 169, note 19; Bynum v. Wicker, 141 N.C. 95, 53 S.E. 478, 115 Am. St. Rep. 675; Buttlar v. Rosenblath, 42 N. J. Eq. 651, 9 A. 695, 59 Am. Rep. 52; Howell v. Folsom, 38 Or. 184, 186, 187, 63 P. 116, 84 Am. St. Rep. 785.

The Married Women's Act does not repeal estates by the entirety. Oregon Laws, §§ 9743, 9745, 9747, 9753, 9754, 9759; 30 C.J. 558, § 87; 13 R. C. L. 1126, §§ 145, 146; Oliver v. Wright, 47 Or. 322, 326, 83 P. 870; Twigger v. Twigger, 110 Or. 520, 534, 223 P. 934, and other Oregon cases cited herein. The Married Women's Acts have abolished the right of the husband to the exclusive enjoyment of the usufruct of an estate held by the entirety. 13 R. C. L. 1126, §§ 145, 146. There is an irreconcilable conflict in the different jurisdictions in this nation regarding the rights of the owners and their creditors of estates by entireties. The cases are collated and the principles discussed in 30 C.J. 555, § 85 et seq., 13 R. C. L. 1096 et seq., c. 12, and exhaustive note beginning in page 305 of 30 L. R. A.

As to the rights of creditors of either spouse during the life of both to subject the interest of either to the payments of the debts owing by husband or wife, there are two lines of authorities. The first rules that during the marriage creditors of the husband could not subject his interest to the payment of his debts by execution. This line of authorities is well represented in Stifel's Union Brewing Co. v. Saxy, 273 Mo. 159, 201 S.W. 67, L. R. A. 1918C, 1009, and cases therein referred to. The reason for so holding is concisely expressed in this language:

"Leaving out of view for the present the decisions of the courts of this state, we conclude that where a judgment and execution thereon are against a husband alone, not including the wife, such judgment and execution cannot affect in any way property held by them by the entirety, nor can it affect any supposed separate interest of the husband therein, for he has no separate interest."

The other line of authorities rule that a husband's interest in such an estate may be sold on execution issuing on a judgment against the husband alone, subject to the right of the wife in case she survives him. The second line of authorities is ably presented in Branch v. Polk, 61 Ark. 383, 33 S.W. 424, 30 L. R. A. 324, 54 Am. St. Rep. 266, where we find this language:

"We think that the effect of these provisions was to give the wife control of all the property owned by her including her interest in an estate by entirety as well as other real estate. To say that it did not apply to an estate by entirety would be to deprive her of a share in the rents and profits of such an estate during the life of her husband, and would establish an exception to the operation of the constitution and statute resting on no valid principle or reason: Hiles v. Fisher, 144 N.Y. 306 [39 N.E. 337, 30 L. R. A. 305] 43 Am. St. Rep. 766. On the other hand, to say that neither she nor her husband could convey any interest in such an estate except by a joint deed would tie up the estate, and prevent either of them from controlling or disposing of his or her interest without the consent of the other. It would also result in placing it beyond the reach of the creditors of either of them, and such is the rule followed in several of the states: McCurdy v. Canning, 64 Pa. St. 39; Chandler v. Cheney, 37 Ind. 391; Naylor v. Minock, 96 Mich. 182 35 Am. St. Rep. 595, and note.

"But it would seem that this rule is to a certain extent illogical, for under it the effect of the statutes giving married women control of their own property is also in this instance to curtail the power of the husband over his own interest in real estate. The object of these laws was not to affect in any way the control of the husband over his own property. Their sole purpose was to give to the wife what she did not have at common law, the right to control and convey her own property as if she were unmarried: Bertles v. Nunan, 92 N.Y. 152, 44 Am. Rep. 361.

"While such legislation has taken away the control of the husband over the interest of the wife in estates of entireties, as it has removed his control from her other property, yet it does not seem reasonable to hold that it also affected his right to control his own interest in such an estate, or that it exempted such interest from seizure by his creditors. As was said in Buttlar v. Rosenblath, 42 N. J. Eq. 651 59 Am. Rep. 52: 'Any device of this character for the protection of the husband's property from his creditors is unknown to the common law, and so contrary to public policy that it ought not to be ingrafted upon our system of laws, by interpretation of the statute [Married Women's Act], unless the intent to do so is clearly expressed.'

"The rational construction of these provisions of our Constitution and statute, which 'uprooted principles of the common law hoary with age,' swept away the marital rights of the husband during the life of the wife, and gave enlarged powers to married women, is, not that they lessen the power of the husband over his own interest in an estate by entirety, but that they deprive him of the control over the interest of the wife which he formerly exercised jure uxoris, and confer upon the wife the control of her own interest. The right of the wife to

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