Kerner v. McDonald
| Decision Date | 08 November 1900 |
| Docket Number | 10,953 |
| Citation | 84 N.W. 92,60 Neb. 663 |
| Parties | BARBARA KERNER, APPELLANT, v. JOHN W. MCDONALD, SHERIFF, ET AL. APPELLEES, and AUGUST KERNER, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Douglas county. Heard below before DICKINSON, J. Affirmed.
AFFIRMED.
McCoy & Olmstead, for appellants:
This was an action of injunction brought by Barbara Kerner against John W. McDonald, as sheriff, Henry Held and August Kerner and was tried on the petition of Barbara Kerner, and answer and cross-petition of August Kerner, setting up the same facts as the petition, and general demurrers by each of the other defendants to each of said pleadings.
The trial court, upon the hearing, sustained the demurrers and entered a decree for defendants McDonald and Held. Barbara and August Kerner separately appealed to this court.
The facts essential to an understanding of the case are, briefly stated, as follows: On and prior to March 9, 1887, August and Barbara Kerner were husband and wife, and on that day Barbara Kerner contracted with one Charles F. Strong for the purchase by her from him of certain land in the city of Omaha Nebraska, which was to become her own property for a consideration of $ 1,200 to be paid by her out of her individual estate. On the same day, upon request of the plaintiff, Strong and wife executed and delivered to Barbara and August Kerner a warranty deed of the premises, with the purpose and intent common to each of the parties to the deed of thereby conveying to the Kerners an estate by entirety. But the deed was a plain warranty deed, in which neither the marriage relation of the Kerners, nor the particular kind of estate intended to be conveyed to and received by them, was specially mentioned. Neither of the Kerners ever acquired any interest in said land except by virtue of said deed, and Barbara Kerner never granted or gave to August Kerner any especial power or agency over her estate or interest in the whole or any part thereof, or any right to use the same. Neither of said Kerners was in actual possession of said land and it had not been used since they became its owners, and it was not improved. Barbara Kerner, out of her individual estate, paid the entire purchase price, and claims that it was and is owned by her and her husband as an estate by entirety and is not subject to execution of any judgment against August Kerner alone. Held obtained a judgment against August Kerner, in the county court of Douglas county, which was duly transcripted to the district court of that county and, in due time, procured an execution to be issued thereon and delivered to McDonald as sheriff. The judgment was not for any necessaries furnished the Kerner family. The sheriff finding no personalty out of which to make the judgment, threatened to sell, not the half, but the entire premises, as the property of August Kerner. Barbara Kerner in writing notified the sheriff of her claim, that she and her husband were grantees of Strong by one deed and owned the land by entirety and that during their joint lives the judgment could not be made therefrom. She in her petition also asserted that enforcement of the execution against said land would impair the obligation of their contract of conveyance and would deprive her of her property without due process of law and deny her the equal protection of the laws and claimed the protection of paragraph 1, section 10, article 1, and section 1, amendment 14 of the constitution of the United States in support thereof. But the sheriff, still persisting in levying on the said land and selling the same to pay said judgment, and Held being a resident of Wyoming and having no property in this state except said judgment, this injunction action was begun to prevent an irreparable injury to Barbara Kerner and the clouding of her title to said land.
The question before the court in this case then is whether the common law rule of estates by entireties has always been and is now in force in this state, by which rule, when there is granted to two persons, who are then husband and wife, an estate by one instrument, the estate belongs to both of them, not by moieties, but by the whole, and will on the death of one belong, as if from the date of the grant, wholly to the survivor ; and, if such rule is in force, whether it is applicable to this case, so that Barbara and August Kerner will be said to have received and to hold said premises by the entirety, and whether, by reason of those facts, and especially because of the fact that all of the purchase price of said premises and the taxes thereon were paid by Barbara Kerner with her own separate funds, it ought to be adjudged that during her life, if she dies before her husband, and forever, if she survives him, the whole of said premises and every interest therein, and the use and enjoyment of the whole thereof, shall be hers free of all acts, judgments and claims of the appellees against said August Kerner.
Throughout the United States the law of entirety is, almost without exception, confirmed by the judicial decisions in the absence of affirmative prohibitive legislation. It is in force in the following states, as confirmed by their judicial decision, and no doubt it is in force in other states and will be so declared by their courts when the occasions arise: Corinth v. Emery, 63 Vt. 505; Brownson v. Hull, 16 Vt. 309; Pray v. Stebbins, 141 Mass. 219; Phelps v. Simons, 159 Mass. 415; Wright v. Saddler, 20 N.Y. 320; Farmers Bank v. Gregory, 49 Barb. [N.Y.], 155; Bertles v. Nunan, 92 N.Y. 152; Hiles v. Fisher, 144 N.Y. 306; Grosser v. City of Rochester, 148 N.Y. 235; Buttlar v. Rosenblath, 42 N.J.Eq. 651; Fulper v. Fulper, 54 N.J.Eq. 431; Parry's Estate, 188 Pa. St. 33; Bramberry's Estate, 156 Pa. St. 628; McCurdy v. Canning, 64 Pa. St. 39; Clark v. Wootton, 63 Md. 113; McCubbin v. Stanford, 85 Md. 378; Bank v. Corder, 32 W.Va. 232, 241-243; Bruce v. Nicholson, 109 N. Car. 202; McLeod v. Tarrant, 17 S. Car. 773; Gresham v. King, 65 Miss. 387; Oglesby v. Bingham, 69 Miss. 795; McDuff v. Beauchamp, 50 Miss. 531; Hemingway v. Scales, 42 Miss. 1, 16; Cole Mfg. Co. v. Collier, 31 S.W. [Tenn.], 1000; Chambers v. Chambers, 92 Tenn. 707; Chandler v. Cheney, 37 Ind. 408; Carver v. Smith, 90 Ind. 223; Brown v. Brown, 133 Ind. 476; Thornburg v. Wiggins, 135 Ind. 178; Michigan Beef & Provision Co. v. Coll, 74 N. W. [Mich.], 475; Dickey v. Converse, 76 N. W. [Mich.], 80; Doane v. Feather's Estate, 78 N. W. [Mich.], 884; Bennett v. Child, 19 Wis. 383; Brown v. Baraboo, 90 Wis. 151; Fiedler v. Howard, 99 Wis. 388; Simpson v. Biffle, 63 Ark. 289; Branch v. Polk, 61 Ark. 388; Bains v. Bullock, 31 S.W. [Mo.], 342; Simons v. McLain, 51 Kan. 160; Shinn v. Shinn, 42 Kan. 1; Baker v. Stewart, 40 Kan. 442, and cases cited; Wilson v. Johnson, 4 Kan.App. 747; Noblitt v. Beebe, 23 Ore. 4.
The law of entireties is established as the law of this state by legislative enactment, or, at any rate, is not prohibited or repealed by any legislation.
At the first session of the territorial legislature, and on March 16, 1855, the legislature passed "An act to put into force in this territory the common law of England," which act was carried forward and reenacted on February 12, 1866, as part of the Revised Statutes. That act reads: "So much of the common law of England as is applicable and not inconsistent with the constitution of the United States, with the organic law of this territory, or with any law passed or to be passed by the legislature of this territory, is adopted and declared to be law within said territory." By this common law act, it will be noted, it was expressly declared, in effect, that the law of entireties was adopted and established as the law of Nebraska.
The married woman acts do not affect the estate by entireties, and such estates may be created and exist since the passage of those laws the same as they did before. The only effect of the married woman acts on entireties is to take away all right in the husband, as common law agent of the wife. Farmers Bank v. Corder, Grosser v. Rochester, Hiles v. Fisher, Simpson v. Biffle, Noblitt v. Beebe, Carver v. Smith, Bains v. Bullock, Baker v. Stewart, Buttlar v. Rosenblath, Doane v. Feather's Estate, ubi supra; Humberd v. Collings, 20 Ind.App. 93.
But, whatever the effect of section 28, we think that that section was afterwards repealed and never reenacted. At the second session of the legislature, in 1856, there was passed "An act for revising, consolidating, and preparing a general code for the territory of Nebraska," but section 28 was not contained therein.
On February 15, 1864, the legislature again enacted a "consolidation of the general laws," the title of the act being "An act to revise and consolidate the laws of a general nature, passed at the second session of the legislative assembly of this...
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