McKee v. Bevins

• Decision Date: 22 September 1917
• Citation: 197 S.W. 563,138 Tenn. 249
• Parties: MCKEE v. BEVINS ET AL.
• Court: Tennessee Supreme Court

197 S.W. 563

138 Tenn. 249

MCKEE v. BEVINS ET AL.

Supreme Court of Tennessee.

September 22, 1917

Appeal from Chancery Court, Loudon County; Hugh G. Kyle, Chancellor.

Bill by Henrietta McKee, by next friend, against B. B. Bevins and others. Decree for defendants, and complainant appeals. Reversed.

WILLIAMS J.

The questions for solution are of law, but they arise on facts that are most unusual. Indeed, we do not find their counterpart in any reported case.

On October 28, 1913, a deed was executed by one Farrow, reciting that he conveyed "unto B. B. Bevins and wife, Elizabeth Bevins, the following real estate [describing it]."

Complainant Henrietta McKee, is the daughter and sole heir of Elizabeth one of the grantees; she having been born prior to her mother's meeting or having any acquaintance with B. B Bevins. The bill is filed by her to recover a one-half undivided interest in the land so conveyed, on the theory that complainant's mother took thereunder as tenant in common with B. B. Bevins.

One of the defendants is Mary A. Bevins, who intermarried with B. B Bevins in this state in 1860; and this defendant claims that Elizabeth was, as such grantee, a tenant by entireties. The nature of the estate so vested in the two grantees is the main question to be decided.

It appears that Bevins abandoned his wife, Mary, and went from Tennessee to Georgia, where in 1887 he went through the form of marriage with Elizabeth. In 1895 this couple removed to and lived together in Tennessee. After several ineffectual efforts to obtain a divorce from Mary in this state, Bevins went back to Georgia for the purpose of procuring a divorce from her in that state. By fraud on the court and on Mary, in representations respecting domicile in Georgia, he was granted a decree of divorce absolute, in May, 1913. He promptly returned to Tennessee, where in September following he married for the second time Elizabeth. As above stated, the conveyance in question was executed in October of the same year, 1913. In June, 1914, Elizabeth died, she and Bevins then owning the tract of land conveyed by the deed.

On learning of the divorce proceedings in Georgia and of the fraud practiced, Mary, in August, 1914, filed a bill and procured a decree in the chancery court of this state declaring the Georgia decree null because of the vitiating fraud. She later filed a bill for divorce on the ground of desertion and was granted an absolute divorce from Bevins, being awarded as alimony in the proceeding all the right, title, and interest of Bevins in the lands described in the deed. This interest she now insists is the title absolute because of the facts that the grantees, Bevins and Elizabeth, were tenants by entireties, and that Elizabeth predeceased Bevins.

Husband and wife, when truly such, are the only persons capable of being tenants by entireties. That estate is not created by a conveyance to a man and a woman who are not under the marital bond, even though they are so described in the instrument. Morris v. McCarty, 158 Mass. 11, 32 N.E. 938; 13 R. C. L. p. 1102, citing Taul v. Campbell, 7 Yerg. (15 Tenn.) 319, 27 Am. Dec. 508. Such grantees would be tenants in common, even though believed by themselves and by the grantor to be husband and wife.

What was the effect of the annulment of the Georgia divorce decree upon the status of Elizabeth to take with Bevins an estate by entireties? That estate, as seen, could only arise if wifehood on the part of Elizabeth existed. Was that status Elizabeth's or Mary's at the date the deed was executed? If the latter's it cannot be that Elizabeth took as tenant by entireties.

As the result of the setting aside of the decree of divorce, Bevins and Mary stood in precisely the same matrimonial relation to each other as though no decree of...