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

• Decision Date: 16 February 1918
• Citation: 201 S.W. 67,273 Mo. 159
• Parties: OTTO F. STIFEL'S UNION BREWING COMPANY, Appellant, v. EDWARD SAXY et ux
• Court: Missouri Supreme Court

201 S.W. 67

273 Mo. 159

OTTO F. STIFEL'S UNION BREWING COMPANY, Appellant, v. EDWARD SAXY et ux

Supreme Court of Missouri, Second Division

February 16, 1918

Appeal from St. Louis City Circuit Court. -- Hon. William M. Kinsey Judge.

Affirmed.

Henry E. Haas and John A. Gilliam for appellant.

(1) It is wholly immaterial whether the Theodosia Avenue property was, or was not, purchased with the separate means of the defendant Mary M. Saxy. At the time plaintiff's debt was contracted the record title of the property stood in the joint names of Mary M. Saxy and Edward Saxy, her husband, as tenants by the entirety. The general rule is that a wife who permits her husband to hold the record title to her realty is estopped to assert her title thereto as against one extending credit to the husband in reliance on his apparent ownership. 33 Ann. Cases (1914 C), 1066; Goldberg v. Parker, 87 Conn. 99, 33 Ann. Cases, 1059, with note; Riley v Vaughan, 116 Mo. 169; McClain v. Abshire, 63 Mo.App. 333; Rieschick v. Klingelhoefer, 91 Mo.App 430; Cottrell v. Spiess, 23 Mo.App. 35; Million v. Bank, 159 Mo.App. 601; Singer Mfg. Co. v. Stephens, 169 Mo. 1; Balz v. Nelson, 171 Mo. 682; Zehnder v. Stark, 248 Mo. 55; 1 Moore on Fraudulent Conveyances, pp. 372, 404; 14 Am. & Eng. Ency. Law (2 Ed.), 259. (2) The interest of the defendant Edward Saxy, in and to the Theodosia Avenue property, as tenant by the entirety, was subject to sale under execution, but the title of the purchaser was liable to be defeated by the survivorship of the wife. Hall v. Stephens, 65 Mo. 670; Morrow v. Zane, 185 Mo.App. 118; Johnston v. Johnston, 173 Mo. 114; Nold v. Ozenberger, 152 Mo.App. 444; Atkison v. Henry, 80 Mo. 153; Hoffman v. Nolte, 127 Mo. 136.

John B. Dempsey and Rozier G. Meigs for respondents.

ROY, C. White, C., concurs.

OPINION

ROY, C.

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.

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 entirety 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 Woman'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), 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, sec. 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 (Lewis's Ed.), p. 182, says:

"And therefore, if an estate in fee be given to a man and his wife, they are neither properly jointtenants, 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, sec. 111, says:

"It differs from the estate of joint-tenancy in that joint tenants take by moieties and at the same time are each seized of an undivided part of the whole. In the estate by entirety neither tenant is seized 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 survivor."

Warvelle, supra, speaking of tenancy by the entirety, says (Sec. 111);

"Both would therefore be seized 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 (Sec. 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. But being 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 Randolph (Va.) 179, it is said: "The husband and wife have the whole from the moment of 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; Kunz v. Kurtz, 8 Del. Ch. 404, 68 A. 450.]

There could be no partition of such estate. [Warevelle on Real Prop., sec. 111; Stewart on Husband and Wife, sec. 306; 4 Kent, p. 362; 1 Washburn on Real Prop., sec. 913; Russell v. Russell, 122 Mo. 235, 26 S.W. 677.]

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.]

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 seized of an estate of inheritance in land, the husband, upon the marriage, becomes seized of the freehold jure uxoris, and he takes the rents and profits during their joint lives."

Platt on Property Rights of Married Women, sec. 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,...