Guardianship of Plowman, In re

• Decision Date: 14 January 1966
• Citation: 398 S.W.2d 721,217 Tenn. 487,21 McCanless 487
• Parties: In the Matter of the GUARDIANSHIP OF Clara B. PLOWMAN, N. C. M. 21 McCanless 487, 217 Tenn. 487, 398 S.W.2d 721
• Court: Tennessee Supreme Court

Page 721

398 S.W.2d 721

In the Matter of the GUARDIANSHIP OF Clara B. PLOWMAN, N. C. M.

21 McCanless 487, 217 Tenn. 487, 398 S.W.2d 721

Supreme Court of Tennessee.

Jan. 14, 1966.

W. Curtis Pope, Memphis, of counsel, Pope, Sayle & Douglas, Memphis, for Clara B. Plowman, plaintiff in error.

Charles A. Walt, Memphis, for Earl E. Plowman, Guardian, defendant in error.

WHITE, Justice.

The sole issue involved in this appeal is whether the husband is obligated to account to his wife during coverture for the rents and profits collected by him from real property owned by them as tenants by the entirety. The trial court held that he was not obligated to so account and we affirm for the reasons appearing herein.

Under the common law, where husband and wife are jointly seized of an estate in land, the husband during the marriage acquires substantially the same rights and power of disposition of the estate thus held that he does in regard to the wife's individual estate owned by her at the time of her marriage. Ames v. Norman, 36 Tenn. 683 (1857).

Under this established law of jus mariti, the right of a husband, the husband had the right to control all property brought into the marriage relationship by the wife and all property owned by the husband and wife as tenants by the entirety. By virtue of the marriage relationship the wife could not sell, devise or collect income from the use of the real property.

In the Ames v. Norman case, supra, in which a third person had acquired, by purchase, at an execution sale, the interest of a husband in an estate by the entireties, the Court said:

The defendant by his purchase became invested with the right of the husband as it existed at the time of the sale; that is, a right to occupy and to enjoy the profits of the land as owned during the joint lives of the husband and wife; subject to the contingency that if the complainant survives her former husband, his estate will then terminate; but if the husband survives, he will become absolute owner of the whole estate. 36 Tenn. at 697.

In the later case of Cole Manufacturing Co. v. Collier, 95 Tenn. 115, 31 S.W. 1000, 30 L.R.A. 315 (1895), it was held that the above statement was unnecessary to the opinion and, therefore, only dictum. Also, in this latter case, the Court held that a husband was not entitled to possession, rents and profits to the exclusion of the wife from an estate held by them as entireties because the husband's right to possession and rents and profits rested in his rights of jus mariti over his wife's property and not as an incident to the estate by the entirety.

In the Cole Manufacturing Company case the husband's interest in the estate by the entirety had been sold at an execution sale to satisfy some of his debts. The Court in distinguishing that case from Ames v. Norman, supra, said, in effect, that the purchaser at such sale did not step into the shoes of the husband and could not obtain possession of the lands or of their rents and profits during the joint lives of the husband and wife, or at all if the wife proved to be the survivor. In other words, the only interest purchased at the execution sale in this case was the right that the husband had in said estate in the event the wife predeceased him.

The disabilities of coverture of married women were totally abrogated by Chapter 26, of the Public Acts of 1913 (T.C.A. Sec. 36-601), except as set out in Chapter 126, of the Public Acts of 1919 (T.C.A. Sec. 36-602) which says nothing in Chapter 26 of the Public Acts of 1913 shall be construed as abolishing tenancies by the entirety.

In the case of Stegall v. City of Chattanooga, 16 Tenn.App. 124, 66 S.W.2d 266 (1932), it was held that the Act of 1919, Chapter 126, restored the disability of the wife with reference to estates held by her and her husband as tenants by the entirety.

In the case of Moore v. Chase, 25 Tenn.App. 239, 156 S.W.2d 84 (1941), it was held that a wife may maintain a cause of action to protect her from her husband's attempt to deprive her of her interest in property held by them as tenants by the entirety. The husband had executed a deed and also an instrument conveying household and personal property to Chase for the purpose of defeating Mrs. Moore of her interest in the property which was held by Moore and wife as tenants by the entirety.

In that case the Court merely approved the holding in the case of Alfred v. Bankers' & Shippers' Ins. Co., 167 Tenn. 278, 282, 68 S.W.2d 941 (1934), in which it was held that a husband may not sell or encumber anything but his own interest in propety owned by the parties as tenants by the entirety. Finally, in the case of Moore v. Chase, supra, the Court held that the wife could prosecute an action to recover her interest in property held by them as tenants by the entirety which had been wrongfully withheld from her by the grantee and conveyee of said property. That case is entirely different from the one that we now have under consideration. In that case the Court enjoined the husband from wasting property.

In the case of Alfred v. Bankers' & Shippers' Ins. Co., supra, the Court, speaking through Mr. Chief Justice Green, held that for the purpose of fire insurance, even though tenancy by the entirety was still intact, with all of its common law appurtenances, the interest of the wife in this estate is not merged into that of the husband whereby he is considered the 'sole and unconditional owner' within the meaning...