Mabie v. Whittaker

• Decision Date: 14 January 1895
• Citation: 39 P. 172,10 Wash. 656
• Parties: MABIE v. WHITTAKER ET UX.
• Court: Washington Supreme Court

39 P. 172

10 Wash. 656

MABIE v. WHITTAKER ET UX.

Supreme Court of Washington

January 14, 1895

Appeal from superior court, Thurston county; W. H. Pritchard, Judge.

Action by William A. Mabie against Lemuel C. Whittaker and Elmira Whittaker, his wife, to recover an interest in land conveyed by plaintiff's father, after the death of his wife, by deed purporting to convey the whole interest in said land and which, by mesne conveyances, is in possession of defendants. From a judgment of nonsuit, plaintiff appeals. Reversed.

Whitson & Parker and J. F. Van Name, for appellant.

W. I Agnew and B. F. Dennison, for respondents.

SCOTT J.

In December, 1864, Andrew E. Mabie and Emeline Z. Huntington were married in Washington Territory, and lived together therein as husband and wife until August 31, 1872, when she died intestate, and no administration was had. They were the parents of the plaintiff, and there was one other child, the issue of said marriage, also living. On the 10th day of August, 1871, one Tilley and his wife, being the owners conveyed the premises described in the complaint, consisting of 1,862.60 acres of land in Thurston county, to Andrew E. Mabie, who held the same, with his wife, until her death. On October 27, 1874, after the death of his wife, Andrew Mabie executed a deed purporting to convey all of said land to one Hallett, and the defendants claim by mesne conveyances through him. The plaintiff is 25 years old, and instituted this action in May, 1892, claiming as an heir of his mother. The form of the action is ejectment, the plaintiff demanding to be let into possession with defendants, as a tenant in common, and for the rents and profits, and damages for cutting and removing timber. After the plaintiff had introduced evidence in support of his case, and rested, the court granted a motion by the defendants for a nonsuit, on the ground that the deed of Andrew Mabie conveyed the entire tract, and cut off whatever interest the plaintiff inherited therein, if any, from his mother, and this appeal is prosecuted therefrom.

The deed from Tilley and wife to Andrew Mabie was executed while the statutes of 1869 relating to common property were in force, and the land became the common or community property of Mabie and wife thereunder. Section 9 of this act (Laws 1869, p. 320; Abb. Real Prop. St. p. 472) empowered the husband to convey the entire title to such land by his separate deed; but subsequently the legislature passed another act (Laws 1871, p. 70; Abb. Real Prop. St. p. 476), which was in force at the time Mrs. Mabie died, in 1872, and section 12 of this act reads as follows: "The husband shall have the management of all the common property, but shall have no right to sell or encumber real estate except he shall be joined in the sale or encumbrance by the wife; but he may sell or encumber any personal common property without being joined by the wife." One of the contentions of the respondents is that, whatever the nature of the wife's interest in the land was, the right of Mabie to convey the entire title could not be taken away by legislation subsequent to the time it was acquired by him. But, leaving out of consideration all question as to whether he could only exercise such right while his wife was living, and could not convey the entire title, under the former law, after her death, and cut off her heirs, we think the subsequent act took away his power to do so. It was immaterial whether the record title to the community lands stood in the name of the husband or of the wife, or of both of them, when considered with reference to the power of the legislature to authorize either or both of them to convey. The legislature could as well have provided that the wife could convey, as the husband; and, if it had power to say that either could dispose of the community interest of the other, it could say that neither could do so. Changing the manner of the conveyance did not alter the status of ownership. It could not make the interest of either spouse in community lands greater or less. Furthermore, prior to the conveyance to Hallett the community in question had been dissolved by the death of the wife, and at the time of her death the law of 1871 relating to the descent of community property was in force. Laws 1871, p. 73, § 22 (Abb. Real Prop. St. p. 478), provided that: "The common property being partnership property, the wife's share shall be one-half thereof and shall be hers and her heirs forever; and her share of the common property may be increased so as to be more than one-half, by the wife's compliance with the provisions of section five of this act."

Appellant claims that upon the death of Mrs. Mabie an interest in said lands vested in him, and that he became a tenant in common with his father and sister. In addition to the claim that Mabie could and did convey the entire title to Hallett, in consequence of having that right when the land was acquired, which we have above discussed, and which will be further considered on a different ground, it is contended by the respondents that Mabie and wife held the land in question as joint tenants, with the right of survivorship, and consequently, upon her death, that he became the sole owner. The act of 1869 did not fix the status of such property, other than to declare it to be common property, and made no provision for its descent. Nor was there at that time, nor for some time thereafter, any express legislative recognition of estates in joint tenancy. But the claim is founded upon the common law, which was in force to a greater or less extent in the territory, and upon the following statute approved in December, 1885, viz.:

"Section 1. That if partition be not made between joint tenants, the parts of those who die first shall not accrue to the survivors, but descend, or pass by devise, and shall be subject to debts and other legal charges, or transmissible to executors or administrators, and be considered, to every intent and purpose, in the same view as if such deceased joint-tenants had been tenants in common; provided, that community property shall not be affected by this act.

"Sec. 2. That all acts and parts of acts in conflict with this act be and are hereby repealed." Laws 1885-86, p. 165.

We cannot concede the force to this indirect recognition of joint tenancy, as applied to community lands, which the respondents contend it should have. The reference thereto in this statute is not the first instance of the employment of loose or inapplicable expressions with regard to former or existing laws, in our legislation; nor do we think such defective statutes are peculiar to this state and territory as it is something liable to occur in any legislation, owing to the fact that lawmaking bodies usually do not and cannot well have a full appreciation and understanding of the various laws in force, or enacted by them, in all their bearings. It is evident that a holding that the right of survivorship did obtain with reference to community lands would overturn and nullify the express declarations of the statute above set forth, relating to the status, ownership, and descent thereof, passed in 1871. Section 22, supra. The act of 1869 and this act declared that all property so acquired should be common property. The section referred to declared that the common property was partnership property. Section 25 provided that "the rights of all married persons now living in this territory, and of all who shall hereafter live in this territory, shall be governed by this act." We have here the clearly manifested intent of the legislature not only to define what the community estate was, namely, a partnership, but providing for descent thereof, and making it applicable to persons then living in the territory, as well as those thereafter to come; to community estates then existing, as well as those to be acquired. The statute of 1871 did not undertake to divest any right which had become vested. Mabie, receiving this conveyance under the act of 1869, thereby became the owner of an undivided one-half interest in the land, and his wife thereby became the owner of the other half. Her right was as much a vested right as his. Under the weight of authority, the legislature had power to change the law of descent, and could take away the right of survivorship, as to estates in joint tenancy, and make the same applicable to lands already acquired. Cooley, Const. Lim. (5th Ed.) 440, 441; Freem. Coten.§ 36,-and cases cited by each; also Miller v. Dennet, 6 N. H. 109. Section 22, aforesaid, is substantially a statute of descent. It has the technical and apt words of such a statute, "hers and her heirs forever," which indicate the legislative intent. There was also a general statute of descent in force, which could more logically be applied to community estates than could the doctrine of joint tenancy. St. 1862, p. 261; Abb. Real Prop. St. 375-378. Subsequently, another act was passed to regulate the descent of real property (Laws 1875, p. 55). Section 2 provided, "Upon the death of husband and wife, the whole of the community property, subject to the community debts, shall go to the survivor." This statute continued in force until November, 1879, when an act was passed (Laws 1879, p. 77), section 13 of which was as follows: "In case no testamentary disposition shall have been made by the deceased husband or wife of his or her half of the community property, it shall descend equally to the legitimate issue of his, her or their bodies. If there be no issue of said deceased living, or none of their representatives living, then the said community property shall all pass to the survivor subject to the community debts, and to the exclusion of collateral heirs, the family...