Gibson v. Zimmerman

• Decision Date: 31 March 1849
• Parties: GIBSON v. ZIMMERMAN.
• Court: Missouri Supreme Court

12 Mo. 385

GIBSON

v.ZIMMERMAN.

Supreme Court of Missouri.

March Term, 1849.

ERROR TO ST. LOUIS CIRCUIT COURT.

GIBSON, for Plaintiff. The plaintiff in error relies on the 13th section of an act regulating Conveyances, Rev. Code 1845, p. 221. The spirit and meaning of this act is opposed to the construction given to it by the Circuit Court, and such construction is opposed to the genius of republics, and the universal practice of this government, as well as to common sense and justice. See as authority on this point, Whittlesey v. Fuller et al., 11 Conn. R. 337.

SPALDING & SHEPLEY, for Defendant.

1st. At common law a conveyance to husband and wife in fee, vests the estate in them as one person, the whole of which remains in the survivor of them. 2nd. The statutes of this State have not altered or modified the common law in this respect as to 1st point. See Preston on Quantity and Quality of Estates, 307-8, 471-2 (40 Law Lib.); 1 Williams on Real Property, 567, No. 36, and 568; 5 Term R. 652; Cruise's Digest, XVIII, p. 333 (492) § 44, et seq.; 4 Kent's Com. 358. As to 2nd point, see 5 Mass. R. 521; 8 Mass. R. 274; 4 Kent's Com. 358; 16 Johns. 110. 3rd. The only case to the contrary is in 11 Cowen, 337. This case expressly recognizes the common law doctrine of the tenancy by entirety in case of conveyance to husband and wife; and that the same has been adopted in some of the States, but declares that this portion of the common law has never been in use in Connecticut. This decision is therefore favorable to the position assumed by me.

RYLAND, J.

The only point in this case for our adjudication, is the effect of a conveyance of land in fee to a man and his wife during the coverture. The court below held that such a conveyance vested the entirety in each; that on the death of the husband, the wife surviving, was seized of the whole. In other words that the husband and wife, grantees in a deed of fee, being in law one person, take the estate, not as tenants in common, not as joint tenants, but as tenants in entireties, each having the whole, and each unable, during the life of the other, to affect the estate to the prejudice of the other's right, and that the estate of the survivor is not a survivorship, is not a cumulation to the former estate of the survivor, but merely a continuation of the original estate vested in the quasi-corporate existence of the man and wife.

The defendant in error contends for the truth and correctness of the following positions, viz.: First. That at common law, a conveyance to husband and wife in fee, vests the estate in them as one person, the whole of which remains in the survivor of them. Second. That the statutes of this State have not altered or modified the common law in this respect.

I agree with the defendant in error on both propositions--that such was the common law at the time of its adoption in this State (then territory), and that our statutes have not altered or modified it in this particular. In the case of Doe, on demise of Lucy Freestone, v. Edward Parrott and Mary, his wife, 5 Term. R. 655, Lord Kenyon says: “For though a devise to A. and B., who are strangers to, and have no connection with each other, creates a joint tenancy, the conveyance by one of whom severs the joint tenancy, and passes a moiety; yet it has been settled for ages, that when the devise is to the husband and wife, they take by entireties, and not by moieties, and the husband alone cannot by his own conveyance, without joining his wife, divest the estate of the wife.” Husband and wife are the only persons who can be tenants by entireties. This tenancy must be created or take effect during coverture; and owes its qualities to the unity of the persons of husband and wife. There is no doubt of this principle existing at common law.

I will now see whether our statutes have altered or modified the common law in this particular. The common law was adopted by our statute as early as June, 1816, for the territory of Missouri. Geyer's Digest, 124. And the same statute adopting the common law, also declared that the doctrine of survivorship, in cases of joint tenants, shall never be allowed in this territory.

The Convention tha formed our State Constitution, declared that all laws then in force in the territory of Missouri, which are not repugnant to the Constitution then formed, shall remain in force until they expire by their own limitation, or be altered or repealed. This took place in July, 1820. In February, 1825, the Legislature, by a statute regulating Conveyances, declared, “that no estate in joint tenancy in any lands, tenements or hereditaments, shall be held or claimed under any grant, devise, or conveyance whatsoever, heretofore or hereafter made, other than to executors or trustee...