Robinson v. Trousdale County

• Citation: 516 S.W.2d 626
• Parties: Vestal ROBINSON and wife, Ruby Robinson, Petitioners, v. TROUSDALE COUNTY, Tennessee, et al., Respondents.
• Decision Date: 18 November 1974
• Court: Supreme Court of Tennessee

Page 626

516 S.W.2d 626

Vestal ROBINSON and wife, Ruby Robinson, Petitioners, v. TROUSDALE COUNTY, Tennessee, et al., Respondents.

Supreme Court of Tennessee.

Nov. 18, 1974.

Solon Fitzpatrick, Carthage, for petitioners.

James Donoho, Hartsville, for respondents.

OPINION

HENRY, Justice.

This is an inverse condemnation suit involving the nature of the estate of tenancy by the entireties under Tennessee law and the common law disability of coverture.

Petitioners, husband and wife, sued Trousdale County for damages for the taking of certain real estate owned by them as tenants by the entirety, for the purpose of widening a public road adjacent to their property, and for incidental damages.

The answer of Trousdale County, among other defenses, asserts that petitioners are barred from seeking compensation and damages by virtue of a deed, executed by the husband alone, conveying the property involved to Trousdale County, in fee simple.

The case was tried by the Circuit Judge without the intervention of a jury.

The trial judge held that the husband was estopped to claim any damage because of the deed; that there were no incidental damages, and allowed the wife Five Hundred Thirty Dollars ($530.00) as actual damages for the value of the land taken.

All parties prayed and perfected appeals to the Court of Appeals.

That court affirmed the judgment of the trial court in all respects except as to the ownership and disposition of the money ($530.00), representing the value of the land. The court directed (1) that this sum be held by the Clerk of the trial court and invested by him during the joint married lives of petitioners; (2) that should the husband die first, the entire recovery would be paid to the wife; (3) that should the wife die first the entire recovery would be paid to Trousdale County, and (4) in the event of a divorce, it would be distributed equally between the wife and Trousdale County.

All parties have petitioned this Court for certiorari. We granted the petition of the wife with argument limited to the disposition of the recovery.

A proper determination of this question necessarily involves a consideration of the nature of an estate by the entireties in Tennessee, the rights, benefits and privileges of the tenants, the right of a tenant to convey his or her interest, and the common law disability of coverture.

Our investigation leads us to the conclusion that the decisional law of Tennessee, not only is nebulous and confusing, but is in substantial conflict and out of harmony with justice, reason and logic.

We, therefore, propose to clarify the law by a clear, comprehensive and definitive opinion.

Any investigation into the Tennessee law governing tenancies by the entireties must start with the landmark case of Ames v. Norman, 36 Tenn. 683 (1857). In holding that the interest of the husband may be sold on execution for the satisfaction of his debts, but his grantee holds in subordination of the contingent right of the wife, the Court, after discussing the nature of a tenancy by the entirety, said:

'From the peculiarity of this tenancy, the unity and indivisibility of the seizin, there is some confusion in the cases respecting the power of the husband alone to make any conveyance or disposition of the land thus held during their joint lives, and also as to the right of creditors of the husband to subject the same to the satisfaction of the husband's debts. But upon examination of the authorities, it appears to be settled that during their joint lives the husband may dispose of the estate. He may lease or mortgage it, or it may be seized and sold upon execution for his debts. The doctrine, properly understood, is that the husband, without the wife's joining him in the conveyance, cannot alien the estate, so as to affect the interest of the wife in case she survives him, as in that event she will be entitled to the whole.'

Justice Beard, speaking for the Court in Cole Manufacturing Co. v. Collier, 95 Tenn. 115, 31 S.W. 1000 (1895), said:

'It may be conceded that at common law the husband, during coverture, had the unlimited right to the usufruct of this estate, and that he could mortgage the property, or otherwise make a valid transfer of the possession of the same. (Citing cases)

'This right necessarily resulted from the common-law view of the effect of marriage upon the wife's property rights. Marriage conferred upon the husband the dominion of the wife's real estate. The rents and profits belonged to him jure mariti. They were not only under his personal control, but they could be seized by his creditors."

With reference to tenancies by the entirety, the Court said:

'This estate, therefore, being a 'unit of indivisible part,' in which the wife, no less than the husband, 'is the owner of the whole from the moment of the conveyance to them,' and equally with him entitled to the whole (McCurdy v. Canning, 64 Pa.St. 39); and it being apparent also that his right to collect the entire rents rests alone jure mariti, and there being no way for the purchaser of the husband's interest to dispossess him without at the same time dispossessing the wife, we have no hesitation in holding that the act of 1849--50, (sec. 3338, Mill. & V.Code) excludes such purchasers from possession against the wife.' 95 Tenn. at 119--123, 31 S.W. at 1001.

The nature of the estate is further discussed and commented upon in Beddingfield v. Estill & Newman, 118 Tenn. 39, 100 S.W. 108 (1906).

Commenting upon the four indispensable unities of time, title, interest and possession, the Court in Bennett v. Hutchens, 133 Tenn. 65, 70, 179 S.W. 629 (1915), held that neither the husband nor the wife can dispose of any part without the assent of the other but the whole must go to the survivor.

In Hux v. Russell, 138 Tenn. 272, 197 S.W. 865 (1917), the Court, citing Ames and Cole Mfg. Co., recognized the general rule of the common law to be that the husband has full control of, and the right to, the rents, profits and usufruct of the property held as tenants by the entireties, to the exclusion of the wife.

The Married Women's Emancipation Act (Ch. 26, Acts of 1913) (T.C.A. § 36--601) reads as follows:

'Be it enacted by the General Assembly of the State of Tennessee, That married women be, and are, hereby fully emancipated from all disability on account of coverture, and the common law as to the disabilities of married women and its effect on the rights of property of the wife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownership acquisition, or disposition of property of any sort, or as to her capacity to make contracts and do all acts in reference to property which she could lawfully do if she were not married; but every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of, all property, real and personal, in possession, and to make any contract in reference to it, and to bind herself personally, and to sue and be sued with all the rights and incidents thereof, as if she were not married.'

In 1918, this Court in Gill v. McKinney, 140 Tenn. 549, 205 S.W. 416, relying and quoting at length from Ames v. Norman, Supra, held that the Legislature, in enacting Chapter 26 of the Acts of 1913, intended to abolish estates by the entireties. William J. Harbison, Esquire (now a member of this Court), writing in the Vanderbilt Law Review, characterized this decision as being 'unfortunate and wholly unexpected.' (See Harbison, Domestic Relations, 1956 Tennessee Survey, 9 Vand.L.Rev. 990, 998--99).

We concur in this view. This decision has released a veritable Pandora's box of legal pandemonium and, in our view, nothing in the Married Women's Emancipation Act supports the Court's conclusion.

It is interesting to note, in view of cases hereinafter cited, the opinion of the Court in Morton v. State, 141 Tenn. 357, 209 S.W. 644 (1918), where it is stated:

'By our Married Woman's Act of 1913 (Acts 1913, c. 26), the policy of this state was completely changed, so that Married women are no longer under the disability of coverture, and are completely emancipated. (Emphasis ours)

In Kellar v. Kellar, 142 Tenn. 524, 221 S.W. 189 (1920) this Court declined to reconsider its holding in Gill.

In McGhee v. Henry, 144 Tenn. 548, 234 S.W. 509 (1921), the Court held that neither tenant by the entirety could separate his interest from the other except by the joint action of both or by operation of law, and neither had the power of alienation so as to prejudice the other.

In 1919, the Legislature repealed Chapter 26, of the Acts of 1913 (see Chapter 141, Acts 1919), and re-enacted it in its present form (T.C.A. § 36--601). The second section of the amendatory act (carried forward into the Code as Sec. 36--602) reads as follows:

'Be it further enacted, That nothing in this Act shall be construed as abolishing tenancies by the entirety, and as affecting the husband's right of curtesy.'

In 1932, in the case of Stegall v. Chattanooga, 16 Tenn.App. 124, 66 S.W.2d 266, the Court of Appeals for the Eastern Section held that the purpose of the amendatory act was to meet the holding in Gill and to Restore the disability of the wife in reference to the estate held by her husband and her as tenants by the entirety. Based on this theory, the Court held that the right of action for damages to property held as tenants by the entirety was vested absolutely in the husband and that he could release it without the consent of the wife or sue thereon without joining her as a party.

In 1934, the Supreme Court, speaking through Chief Justice Grafton Green, in Alfred v. Bankers' & Shippers' Insurance Co., 167 Tenn. 278, 68 S.W.2d 941, without referring to Stegall, rejected the idea that the Married Women's Act, as amended, re-instated the common law in respect to estates by the entirety. The following language from that case...