George Luhrs v. William Hancock, Lilly

• Decision Date: 13 May 1901
• Docket Number: No. 176,176
• Citation: 45 L.Ed. 1005,21 S.Ct. 726,181 U.S. 567
• Parties: GEORGE H. N. LUHRS, Appt. , v. WILLIAM A. HANCOCK, LILLY B. Hancock, and Thomas W. Pemberton
• Court: U.S. Supreme Court

181 U.S. 567

21 S.Ct. 726

45 L.Ed. 1005

GEORGE H. N. LUHRS, Appt.,

v WILLIAM A. HANCOCK, LILLY B. Hancock, and Thomas W. Pemberton.

No. 176.

Argued and Submitted March 7, 1901.

Decided May 13, 1901.

Mr. L. E. Payson submitted the case for appellant.

Messrs. A. S. Worthington and C. F. Ainsworth for appellees.

Mr. Justice McKenna delivered the opinion of the court:

This is an appeal from the judgment of the supreme court of Arizona, affirming the judgment of the district court of the third judicial district of the territory, rendered in an action of ejectment originally brought against Hancock and his wife, and to which action Pemberton was afterwards made a party.

The facts as found by the supreme court are as follows:

'This was an action by the appellant to recover possession of five certain lots in the city of Phoenix, and for the value of the rents and profits thereof. The complaint is in the usual form in ejectment cases. The defendants William A. Hancock and Lilly B. Hancock, husband and wife, answered, pleading 'not guilty,' and setting up the statute of limitations in bar of the plaintiff's right to recover. Similar defenses were interposed by the defendant Thomas W. Pemberton, who, by way of cross complaint, also pleaded his ownership and possession of said premises, and asked for affirmative relief as against the adverse claims of the plaintiff. Upon the trial in the court below the plaintiff was adjudged to have no right, title, or interest in said property, and the defendant Pemberton was adjudged to be the owner and entitled to the possession thereof. From this judgment of the district court the plaintiff prosecutes an appeal.

'The record shows the material facts in the case to be substantially as follows: On February 27, 1886, the legal title to the premises in controversy was vested in William A. Hancock, the common source from which both the plaintiff and the defendant Pemberton deraign title. The said premises were inclosed as one tract, with a dwelling house situated upon lots 14 and 15, and had been occupied by the defendants William A. Hancock and Lilly B. Hancock as a homestead ever since 1873. On the said 27th day of February, 1886, and while the said premises were so occupied and claimed as a homestead, the said William A. Hancock, for the consideration of love and affection deeded the same by a direct conveyance to his said wife, Lilly B. Hancock. The value of the said property so conveyed did not at that time exceed the sum of $4,000. On March 5, 1892, certain creditors (Herrick & Luhrs) obtained a judgment in the district court of Maricopa county against the said William A. Hancock for the sum of $2,524.02 upon an indebtedness contracted by him November 1, 1883. An execution was issued upon said judgment April 5, 1892, and the same was levied upon the premises here in controversy as the property of William A. Hancock. No proceeding was had to set aside the anterior conveyance to his wife, but the said real estate was formally sold under said execution to the plaintiff George H. N. Luhrs, to whom a sheriff's deed was made on February 4, 1893, conveying the title which is the basis of his ejectment suit. On March 21, 1892, the said Lilly B. Hancock and William A. Hancock had borrowed from one Robert Allstatter the sum of $2,600, and on the same day, to secure the payment thereof, had executed to the said Allstatter a mortgage upon all of the aforesaid premises. This mortgage, presumably executed in good faith, was subsequently foreclosed, and the defendant Thomas W. Pemberton became the purchaser at the foreclosure sale. He received the sheriff's deed for the said premises on February 14, 1895, took possession thereof from the Hancocks, and has since paid the taxes and made valuable improvements upon the property. The plaintiff Luhrs was never in the possession of the premises.'

The supreme court also certified that the exceptions on the trial to the rulings of the court were: (1) To the admission of the deed dated February 27, 1886, from Hancock to his wife. (2) The rejection of evidence tending to prove that Hancock made an application for a homestead under the public land laws of the United States, and filed an application in the land office of Tucson, completed his homestead proofs, and received a certificate from the receiver for the land applied for. A certified copy of the papers was offered in evidence, but ruled out. (3) The rejection of evidence of the insanity of Mrs. Hancock at the time she executed the mortgage to Robert Allstatter, the foundation of Pemberton's title. (4) The admission in evidence of the note and mortgage over the objection of plaintiff claiming Mrs. Hancock insane and incompetent to make them.

We are confined to the assignment of errors based on these rulings. Harrison v. Perea, 168 U. S. 311, 42 L. ed. 478, 18 Sup. Ct. Rep. 129; Holloway v. Dunham, 170 U. S. 615, 42 L. ed. 1165, 18 Sup. Ct. Rep. 784; Young v. Amy, 171 U. S. 179, 43 L. ed. 127, 18 Sup. Ct. Rep. 802; 18 Stat. at L. 27, chap. 80.

(1) The ground of objection to the deed is that it is void as a conveyance because void at common law, void under the statute restricting the conveyance of homesteads, and void because a fraud upon creditors, 'and especially the plaintiff, whose debt against Hancock then existed.'

It is conceded that part of the property was a homestead in 1883, at the time of the commencement of the suit by Herrick and Luhrs, but that before judgment the homestead had ceased to exist, because, under the statute of the territory passed March 10, 1887, a declaration in writing was necessary to be filed and recorded in the office of the county recorder to preserve the homestead exemption. In other words, it is conceded that the property was a homestead when Hancock executed the deed to his wife in 1886, but it is claimed that, the deed being void and the property ceasing to be a homestead in 1889, it became subject to his debts.

Two questions arise: The validity of the deed, and the continuance of the homestead. We need not now express an opinion as to the latter. The former should be answered in the affirmative. The contention is that the deed was void because it was made directly by Hancock to his wife without the intervention of a trustee, and the contention is claimed to be supported by act No. 68 of the laws of the territory. That act provided as follows:

'The common law of England, so far as it is consistent with and adapted to the natural and physical condition of this territory and the necessities of the people thereof, and not repugnant to, or inconsistent with, the Constitution of the United States, or Bill of Rights, or laws of this territory, or established customs of the people of this territory, is hereby adopted and shall be the rule of decision in all the courts of the territory.'

It will be observed, not the common law unqualifiedly was made the rule of decision, but that law as modified by the conditions of the territory; and changes in the common-law relation between husband and wife had been expressed in the statutes prior to the passage of the act of 1885. A community of property of the marriage was provided for; each of the spouses could have separate property, and of hers she had the absolute disposition. The separate legal individuality of the wife, therefore, was recognized, and the doctrine which confounded her being with that of her husband was abolished. The conditions had passed away which caused it to exist. New and more natural conditions had arisen, and the act of 1885 adopted the common law only so far as it suited to those conditions. This was the view of the supreme court of the territory, and we adopt it. That learned court could certainly know what the natural conditions of the territory and the necessities of its people were, and how far consistent with them the laws of a past time were.

Indeed, the modification of the common law as to the property relations of husband and wife generally in this country was expressed by this court in Jones v. Clifton, 101 U. S. 225, 25 L. ed. 908. In that case the assignee in bankruptcy brought suit to set aside two deeds made by Clifton to his wife, executed, as it was contended, to defraud creditors. They were asserted to be void for the reason, among others, 'because made directly to his wife, without the intervention of a trustee, and so passed no interest to her.' To the contention it was replied that the deeds were voluntary settlements upon his wife. 'And,' Mr. Justice Field said, speaking for the...