Otto F. Stifel's Union Brewing Co. v. Saxy

• Decision Date: 05 January 1918
• Docket Number: No. 18792.,18792.
• Citation: 273 Mo. 159,201 S.W. 67
• Parties: OTTO F. STIFEL'S UNION BREWING CO. v. SAXY et al.
• Court: Missouri Supreme Court

201 S.W. 67

273 Mo. 159

OTTO F. STIFEL'S UNION BREWING CO. v. SAXY et al.

No. 18792.

Supreme Court of Missouri, Division No. 2.

January 5, 1918.

Motion for Rehearing Denied February 16, 1918.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

Suit by the Otto F. Stifel's Union Brewing Company against Edward Saxy and wife. Decree for defendants, and plaintiff appeals. Affirmed.

The. plaintiff seeks herein to subject an alleged interest of defendant Edward Saxy in real estate standing in the name of his wife, the defendant Mary M. Saxy, to the payment of a judgment debt due to it from the husband. There was a decree for defendants, and plaintiff has appealed.

On September 3, 1891, certain real estate in St. Louis was conveyed to the defendants, they being then as now husband and wife, and taking said property as tenants by the entireties. In 1905, while the property was so held, the husband became indebted to the plaintiff. Thereafter, through)an intermediary, the title was placed in the wife alone; and, still later, the property was sold, and the net proceeds were used in the purchase of the real estate now in controversy. The petition alleges that the title to both of said tracts was so placed in the wife alone in fraud of plaintiff's rights as such creditor, and prays that the husband's interest in the last-mentioned tract be subjected to the payment of plaintiff's judgment.

Henry E. Haas and John A. Gilliam, both of St. Louis, for appellant. Jno. B. Dempsey and Rosier G. Meigs, both of St. Louis, for respondents.

ROY, C. (after stating the facts as above).

I. The question as to whether an execution against the husband alone can reach any interest of any kind in property held by the husband and wife as tenants by the entireties has never been before this court. There are some dicta on the subject, which we will consider after a review of the common law and the decisions of other jurisdictions. The conflicting opinions in the decided cases, and the various reasons given therefor, convince us that no safe conclusion can be reached without a clear perception of what such an estate was at common law, and the effect of the statutes known as the "married women's acts" on such estates.

We will first endeavor to ascertain what an estate by the entirety was at common law, leaving out of view the effect on such estate of the power of the husband in the right of the wife (jure uxoris) to dominate her property. The estate was peculiar (Hall v. Stephens, 65 Mo. 670, 27 Am. Rep. 302), and partook, in many respects, of the nature of the marriage relation. Husband and wife took and held it not as separate individuals and by moieties, but as one person, each holding the whole of it. Stewart on Husband and Wife, § 303; 4 Kent, 362. The English Court of Chancery, in Jupp v. Buckwell, L. R. 39 Ch. Div. 148, quotes Coke and Bracton as saying that in such an estate, "vir et uxor sunt quasi unica persona, quia caro una et sanguis unus." That is a plain statement that they are one person because "they are one flesh and one blood." 2 Blackstone, D. 182, says:

"And, therefore, if an estate in fee be given to a man and his wife, they are neither properly joint tenants, nor tenants in common, for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout, et non per my ", the consequence of which is that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor."

Warvelle on Real Property, § 111, says:

"It differs from the estate of joint tenancy in that joint tenants take by moieties and at the same time are each seised of an undivided part of the whole. In the estate by entirety neither tenant is seised of a part, or moiety, but both of them have the entire estate, and as this involves in itself a physical impossibility in the case of ordinary individuals it necessarily follows that effect can only be given to the grant by regarding both tenants as constituting but one person. But this, in fact, is just what the law does, and as this unity of person is never recognized save in the case of husband and wife, the estate by entirety is confined exclusively to persons within the marriage relation."

There was incident to this estate the right of survivorship. But such survivorship was very different from survivorship in case of joint tenancy. 2 Blackstone, p. 184, speaking of joint tenancy, says:

"This right of survivorship is called by our ancient authors the jus accrescendi, because the right upon the death of one joint tenant accumulates and increases to the survivors."

Warvelle, supra, speaking of tenancy by the entirety, says (section 111):

"Both would therefore be seised of the entire estate; neither could dispose of any part of same without the assent of the other, and upon the death of either the whole estate would remain in the survivor. In this latter respect while the right of survivorship gives to the estate an apparent resemblance to joint tenancy, it yet differs materially from joint tenancy, for the survivor succeeds to the whole not by the right of survivorship simply, as is the case with joint tenants, but by virtue of the grant which vested the entire estate in each grantee, or, in contemplation of law, in one person with a dual body and consciousness."

Stewart says (section 306):

"On the death of either, the other has the whole estate, continuing alone his or her former holding, and not taking by survivorship in the sense that a surviving joint tenant does."

In Garner v. Jones, 52 Mo. 68, it was said:

"At common law a conveyance in fee to husband and wife, of real estate, created a tenancy by the entirety. Being but one person in law, they took the estate as one person; each being the owner of the entire estate, neither of whom had any separate or joint interest but a unity or entirety of the whole. So if either died the estate continued in the survivor, as it had existed before; an undivided unity or entirety. There was no survivorship as in joint tenancies, but a continuance of the estate in the survivor as it originally stood. The only change by death was in the person, not in the estate. Before death they both constituted one person holding the entire estate, and after the death of either the survivor remained as the only holder of the estate."

In Thornton v. Thornton, 3 Rand. (Va.) 179, it was said:

"But husband and wife have the whole from the moment of the conveyance to them; and the death of either cannot give the survivor more."

See, also, Cole Mfg. Co. v. Collier, 95 Tenn. 115, 31 S. W. 1000, 30 L. R. A. 315, 49 Am St. Rep. 921; Kunz v. Kurtz, 8 Del. Ch. loc. cit. 414, 68 Atl. 450.

There could be no partition of such estate. Warvelle on Real Prop. § 111; Stewart on Husband and Wife, § 306; 4 Kent, p. 362; 1 Wash. on "Real Prop. § 913; Russell v. Russell, 122 Mo. 235, 26 S. W. 677, 43 Am. St. Rep. 581.

Neither could dispose of any interest in the estate without the other. Blackstone's language above cited is:

"Neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor."

Warvelle, as above quoted, says:

"Neither could dispose of any part of the same without the assent of the other."

4 Kent, 362, says:

"Neither of them can alien so as to bind the other."

Upon being divorced the parties cease to occupy the relation of tenants by the entirety. The dissolution of the marriage relation dissolves the tenancy by the entirety. Russell v. Russell, 122 Mo. 235, 26 S. W. 677, 43 Am. St. Rep. 581. It will be noticed that such an estate was based on the unity of husband and wife, they being considered in all respects as equals so far as that estate was concerned.

We will now consider the estate or right which the husband acquired jure uxoris in the property of the wife, and its effect on the estate by the entirety. 1 Bishop on Laws of Married Women says:

"Thus, as we have seen, the wife's money and chattels in possession pass by the marital right to the husband."

2 Kent, 130, says:

"If the wife, at the time of the marriage, be seised of an estate of inheritance in land, the husband, upon the marriage, becomes seised of the freehold jure uxoris, and he takes the rents and profits during their joint lives."

Platt on Property Rights of Married Women, § 2, says:

"The husband was entitled to the use during coverture of all the real estate acquired by the wife before and after marriage."

Stewart, in his work above cited (section 146), says:

"At common law a husband holds during coverture in right of his wife, she being merged in him, all her lands in possession, and, owns the rents and profits thereof absolutely. This is called his freehold estate jure uxoris; it is often said to be an estate for the joint lives of the husband and wife, but this is a mistake as it terminates with absolute divorce. It differs from curtesy initiate in that it is a vested estate in possession, while curtesy initiate is a contingent future estate, it is independent of birth of issue, is held in right of the wife, and is not added to or diminished when curtesy initiate arises."

And in section 306, speaking of estates by the entirety, he says:

"During coverture, the husband has at common law his estate jure uxoris, with the right to the rents and profits; he holds the property subject to his control, use and possession; only this estate for their joint lives can be aliened by him, or taken for his debts, or charged by him with a mechanic's lien."

In Hall v. Stephens, 65 Mo. 670, 27 Am. Rep. 302, it was said concerning estates by the entirety:

"If, as already seen, the husband and wife became seised in entirety of the undivided one-seventh of the devised premises, the plaintiff is clearly entitled to a corresponding recovery of possession, if the husband had at the...