Russell v. Russell

• Decision Date: 24 May 1894
• Parties: Russell v. Russell et al., Appellants
• Court: Missouri Supreme Court

26 S.W. 677

122 Mo. 235

Russell v. Russell et al., Appellants

Supreme Court of Missouri, Second Division

May 24, 1894

Appeal from St. Clair Circuit Court. -- Hon. D. P. Stratton, Judge.

Affirmed.

I. C Duckworth for appellants.

(1) The court erred in refusing the declaration of law asked by the defendants. A deed to husband and wife creates a tenancy by the entirety, neither taking a moiety, but each the entire estate. Gibson v. Zimmerman, 12 Mo. 385; Garner v. Jones, 52 Mo. 68; Beauchamp v. Shrader, 52 Mo. 72; Shroyer v. Nickell, 55 Mo. 264; Hall v Stephens, 65 Mo. 670; Baker v. Stewart, 2 L. R A. 434. (2) An estate to husband and wife is not a joint tenancy. In such an estate each party takes the entirety, and the survivor takes the whole, not by survivorship, but by virtue of the original conveyance. Thornton v. Thornton, 3 Randolph, 179. Estates by entireties can not be partitioned by the voluntary act of the parties nor by any other means known to the law; it is an estate that can not be destroyed, except by the joint deed of the parties or by the death of one of them. Thornton v. Thornton, supra, and cases cited.

John H. Lucas for respondent.

(1) Estates by entirety are dissolved by divorce; they then become tenancies in common and may, like other tenancies in common, be partitioned. Freeman's Cotenancy and Partition [Ed. 1874], sec. 444, p. 541; 17 Am. and Eng. Encyclopedia of Law, pp. 692, 793; 2 Bishop on Marriage, Divorce and Separation [Ed. 1891], secs. 1649, 1650, 1651, 1652, pp. 625-627, and note of author, p. 627; Enyeart v. Kepler, 118 Ind. 36; Haws v. Wolner, 80 Ill. 197; Hopson v. Fowlkes, 23 S.W. (Tenn.), 55. (2) The tendency of modern decision is to separate property interests when the sacredness of the maritial relation is dissolved, and estates in entirety are no exceptions to the rule, and no good reason can be assigned why they should be; so community property, homesteads, etc., can be partitioned. 17 Am. and Eng. Encyclopedia of Law, 692, 693; Kirkwood v. Domnau, 80 Texas, 645.

OPINION

Sherwood, J.

The question presented by this appeal is whether a wife divorced from her husband, can have partition of land owned by them prior to such divorce as tenants by the entirety. Such tenancies were recognized at an early day in this state (Gibson v. Zimmerman, 12 Mo. 385); at a time, too, when our statute was in this form: "Every interest in real estate granted or devised to two or more persons, other than executors or trustees, as such, shall be a tenancy in common, unless expressly declared, in such grant or devise, to be in joint tenancy." The statute had been in this form since 1835, and substantially in that form ever since 1825. Thus the statute remained until 1865, when it was amended by striking out the words "as such," and inserting immediately after them "or to husband and wife." Gen. Stat. 1865, p. 443, sec. 12.

This rule of the common law seems to have been intentionally emphasized in the amended statute just quoted, is a settled rule of property of this state and the section still retains a place in the last revision. 2 R. S. 1889, sec. 8844; Garner v. Jones, 52 Mo. 68; Shroyer v. Nickell, 55 Mo. 264; Hall v. Stephens, 65 Mo. 670. In which last case, after a considerable citation and discussion of authorities, it was ruled that the interest of a husband in land by entirety could be sold under execution, but that his wife, surviving him, would take the entire estate.

The peculiarities of this sort of tenancy are derived from the fact that in legal contemplation, husband and wife are a unit of personality; there can be no moieties between them; they are each seized of the entirety, per tout, not per my, and the husband can not forfeit or alien the estate, except during the period of his life. Hall v. Stephens, supra, and cases cited. And owing to this legal unity of husband and wife, it is said to be impossible, even by express words, to convey land to them so as to make them tenants in common with each other. Dias v. Glover, 1 Hoffman's Chy. 71; Stuckey v. Keefe's Ex'rs, 26 Pa. 397, and cases cited.

This being the case, the question arises what effect, if any, does a decree of divorce have upon the status of an estate by entirety? On this point, Freeman observes. "At the present day, partition of property held in entireties may be obtained in connection with a decree of divorce, or whenever, by a divorce, the legal unity of the cotenants has been destroyed. In other words, while the tenancy by entireties continues, no portion can be made; but when the tenancy has...