Myers v. Reed

• Decision Date: 08 August 1883
• Citation: 17 F. 401
• Parties: MYERS and another v. REED and another.
• Court: U.S. District Court — District of Oregon

17 F. 401

MYERS and another v. REED and another.

United States Circuit Court, D. Oregon.

August 8, 1883

William B. Gilbert, for plaintiffs.

Thomas N. Strong, for defendants.

DEADY J.

The plaintiffs, citizen of New York and Connecticut respectively, bring this suit against the defendants citizens of Oregon, to obtain a conveyance to them of the undivided four-ninths of the north half of lot 4 in block 10 of Couch's addition to Portland, alleging that the same is worth 'at least $5,000. The case was heard upon a demurrer to the bill. From the latter it appears that on February 16, 1860, William Baker, Robert Pittock, and Tobias Myers were in the possession of the premises, claiming each to be the owner of an undivided third thereof, under and by virtue of a conveyance from John H. Couch and Caroline, his wife, in 1850, to George Flanders, and sundry mesne conveyances thereunder; that at the date of such conveyance said Couch and wife were occupants of a tract of the public land, including the premises in question; that in 1871 the widow and heirs of said John H. 'made final proof of his settlement' upon said tract as a donation claim, and on November 13, 1871, a patent issued to them for the same whereby the south half thereof including said block 10, was set apart to said Caroline; that on February 16, 1860, said Baker conveyed his interest in the premises to said Pittock, and Tobias Myers, and M. M. Myers, his wife, and on October 27, 1862, said Pittock conveyed his interest therein to said Myers and wife, who together occupied the same until the death of the former, on March 26, 1863; that said Myers by his last will devised all his interest in the premises to his wife for her life, and the remainder in equal parts to his three nephews, the plaintiffs, and George T. Myers; that said M. M. Myers continued in the sole occupation of the premises from the death of her husband until March 13, 1874, when she and said George T. Myers conveyed their several interests therein to the defendant Simeon G. Reed; that on March 26, 1874, said Caroline Couch quitclaimed the premises to said Reed for the nominal consideration of five dollars, but in fact for the purpose of confirming to said Reed the right claimed under the prior conveyance of her husband, and, as is alleged, upon the erroneous impression that said Reed had acquired all right to the premises under said deed, and was then the equitable owner of the same; and that in March, 1882, said M. M. Myers died, and the plaintiffs, as the devisees of said Tobias Myers, became and are entitled to the undivided four-ninths of the premises. Upon the argument it was insisted by counsel for the defendants that the conveyances by Baker and Pittock to Myers and his wife vested in them an estate as tenants by entirety of the undivided two-thirds of the premises, which neither could dispose of without the assent of the other, and which upon the death of Myers remained in his wife absolutely.

That such was the legal effect of these conveyances at common law there is no doubt; the rule being that as the husband and wife are one in law, they cannot take and hold an estate by moieties, and are therefore seized as tenants by entirety. 2 Black, 182; 1 Washb.Real Prop. 424; 2 Kent, 132; 1 Bish.Mar.Wom. § 613; Den v. Hardenberg, 18 Amer.Dec. 371, (5 Hall. 42;) Hoffman v. Stigers, 28 Iowa, 305.

Admitting this proposition, counsel for the defendant contend that the common law has been changed in this state by the operation of certain provisions in the constitution and statutes thereof. These are section 5 of article 15 of the constitution, which provides that 'the property and pecuniary rights of every married woman, at the time of marriage, or afterwards acquired by gift, devise, or inheritance, shall not be subject to the debts or contracts of the husband; and laws shall be passed for the registration of the wife's separate property. ' But this provision has no application to property acquired, not by the wife alone, but jointly with her husband. And as property so acquired was not, at common law, subject to the debts or contracts of the husband during the life of the wife, or at all, if she survived him, there was no reason why it should be included the therein. Neither does the clause relating to the registration of the wife's separate property bear upon the question in any way; for if the husband and wife even took as tenants in common, her interest would not be her separate property, unless it was so declared in the conveyance or other source of title.

Sections 9 of the act of January 13, 1854, relating to conveyances, (Or. Laws, 516,) and 1 of the act of October 18, 1862, relating to estates, (Id. 589,) are the statutes which are relied on as modifying this common-law rule. But the second one is too late for this case; it did not take effect until June 1, 1863, and on March 26 of the same year the husband died, leaving the wife the sole owner of the interest in the property conveyed to them during the marriage.

When this act took effect, Tobias Myers and M. M. Myers were, if ever, no longer 'persons having an undivided interest' in the two-thirds of this property conveyed to them by Baker and Pittock. On the contrary, the husband's interest ceased with his life, and thereafter the wife held the estate alone. Nor do I think the result would have been different if the statute had taken effect during the life of the husband; for although Myers and wife were two natural persons, yet in contemplation of law they were but one, and on the death of either, that legal personage was represented by the survivor, who was entitled to hold the estate as before. In my judgment the legislature had not the power to divest the survivor of this right in the property without her consent; and it would not be presumed that such was the intention in passing the act, so long as it admits of any other construction. Nor does the act of 1854 held the case of the plaintiffs. As the law then stood, the conveyances from Baker and Pittock to Myers and wife were not 'made to two or more persons,' but to Tobias and M. M. Myers as one person,-- husband and wife,--which gave them and the survivor of them an indivisible estate in the premises.

I do not understand that it is claimed by counsel that any of these provisions of the constitution or statutes, in words or even in legal effect, comprehend this case, but that, taken collectively, they manifest an intention on the part of the legislature to disregard or do away with the common-law rule that regarded husband and wife, for this and other purposes, as one person in law, and therefore the court ought to treat it as superseded or abolished. But in this matter the province of the court is to await the action of the legislature, and not to anticipate or endeavor to outstrip it, in the pursuit of a new notion. See Stubblefield v. Menzies, 8 Sawy. 41; (S.C. 11 F. 268.)

Counsel for the plaintiffs also cites cases from five states of the Union (Hoffman v. Stigers, 28 Iowa, 302; Meeker v. Wright, 76 N.Y. 262; Cooper v. Cooper, 76 Ill. 57; Clark v. Clark, 56 N.H. 105; Walthall v. Goree, 36 Ala. 728,) in which it is held that this common-law rule is no longer in force there, because inconsistent with statutes providing, in effect, that the property which comes to a married woman shall, notwithstanding the marriage, be her separate property, and not subject to the control or interference of her husband, or liable for his debts.

But whatever may be claimed for the acts of October 21, 1878, (S.L. 94,) and October 21, 1880, (S.L. 6,) concerning the status and rights of married women, certainly there was no such statute as these in force in Oregon up to the death of Tobias Myers, when at least Mrs. Myers' right to the whole of this two-thirds interest in this property became vested beyond legislative control.

It also appears that in the case of Noblett v. Beebe the supreme court of this state, at the October term, 1882, held that, under a conveyance in fee to husband and wife in 1866, they took as tenants by entirety, and not in common, and that upon the death of one of them the whole estate continued in the survivor. The manuscript opinion that has been furnished me merely states the conclusion of the court, with the authorities relied on. But it is an authoritative declaration of the law of this state concerning the effect of a conveyance to husband and wife of real property, and, as such, is binding upon this court. Nor can it be presumed, as suggested by counsel, to have been made without reference to the provisions of the constitution and statutes of the state which might affect the question.

In McGoon v. Scales, 9 Wall. 27, Mr. Justice...