Stewart v. Thomas

Decision Date08 March 1902
Docket Number12,015
Citation68 P. 70,64 Kan. 511
CourtKansas Supreme Court

Decided January, 1902.

Error from court of appeals, northern department; JOHN H. MAHAN ABIJAH WELLS, and SAM'L W. MCELROY, judges.

Judgments of court of appeals and district court reversed and case remanded.



ESTATES IN ENTIRETY -- Act of 1891. By chapter 203, Laws of 1891 (Gen. Stat. 1901, § 2534), estates in entirety, as recognized in Baker v. Stewart, 40 Kan. 442, 19 P. 904, 2 L. R. A. 434, 10 Am. St. Rep. 213, were abolished.

Thos. J. White, for plaintiffs in error.

F. D. Mills, for defendants in error.




A conveyance of certain lots situate in Kansas City, Kan., was made December 1, 1880, jointly to Martin Stewart and Catherine Stewart, who were husband and wife. On September 19, 1890, Catherine Stewart, together with her husband, Martin Stewart, borrowed from the defendant Fidelia B. Thomas the sum of $ 1500, on a note payable one year after date, and to secure the payment thereof gave a mortgage on said lots. While the mortgage remained unpaid, and on April 8, 1894, Catherine Stewart died intestate, leaving her husband and the children, who with him are plaintiffs in error, surviving her. On July 24, 1896, Fidelia B. Thomas commenced foreclosure proceedings on her mortgage, making Martin Stewart, the surviving husband, sole party defendant. She obtained judgment against him, had the property sold, purchased it herself, and received a sheriff's deed therefor, and still claims title thereto by virtue of such foreclosure proceedings. Those of the plaintiffs in error who are the children of said Catherine Stewart, deceased, not having been made parties to said foreclosure proceeding, claimed the right of redemption of such property, tendered to said defendant in error Fidelia B. Thomas, and her husband, John Thomas, the full amount due on the judgment and obligation, together with interest and costs of the proceeding to date of tender, and demanded a quitclaim deed to the premises; the tender being refused, this action was brought to redeem the lots from the foreclosure sale, and the moneys so tendered were brought into court to abide the result.

The only important question in this case is whether the children of the deceased Catherine Stewart were necessary parties to the foreclosure proceeding. If the estate of Martin and Catherine Stewart in the lots was one which is defined to be one in entirety, and if such estates were not abolished in Kansas by section 1 of chapter 203, Laws of 1901 (Gen. Stat. 1901, § 2534), then the foreclosure proceedings were regular, and cut off any right of redemption in such children. The district court held that the estate was one of entirety; that such estates had not been abrogated by the statute referred to, and that such right of redemption was barred. In the court of appeals, the decision of the district court was sustained. (Stewart v. Thomas, 10 Kan.App. 576, 62 P. 1119.) To reverse these decisions the case is here.

Under the common law, it was held that "tenancy by entireties arises whenever an estate vests in two persons, they being, when it so vests, husband and wife." (Freem. Coten. & Part. [2d ed.] § 63.) The same author, continuing, says:

"A conveyance to husband and wife creates neither a tenancy in common nor a joint tenancy. The estate of joint tenants is a unit made up of divisible parts; that of husband and wife is also a unit, but it is made up of indivisible parts. In the first case, there are several holders of different moieties or portions, and upon the death of either the survivor takes a new estate. He acquires by survivorship the moiety of his deceased cotenant. In the last case, though there are two natural persons, they are but one person in law, and upon the death of either the survivor takes no new estate." (§ 64.)

It is unnecessary to consider how much now remains of the fiction that husband and wife constitute but one person in the law. It is sufficient to the present purpose to advert to the fact that under our statutes they may, and do, hold estates separately, and their rights with reference thereto are substantially equal. The reason for the rule of the common law no longer exists, and the rule itself, having no substantial basis to rest upon under modern conditions, is no longer entitled to respect. Indeed, there are authorities holding that even under the common law husband and wife are not tenants by entireties, but are joint tenants. This position seems to be well sustained in reason, though against the weight of authority. (Ram, Ten. & Ten. 170-174.)

In the case of Baker v. Stewart, 40 Kan. 442, 452, 19 P. 904, 2 L. R. A. 434, 10 Am. St. Rep. 213, it was said:

"The common law in this state has probably been so amended that the husband and wife have an equal right to control all the land which they own in entirety, but in other respects the estate of entirety is probably precisely the same as it was before the statutes relating to married women took effect. With this change in the right of the husband to control the real estate owned by his wife or by him and her in entirety the estate of entirety has become...

To continue reading

Request your trial
9 cases
  • Troutman v. Crippen
    • United States
    • Tennessee Supreme Court
    • May 10, 1937
    ... ... citing Meul v. People, 198 Ill. 258, 64 N.E. 1106; ... In re Pinkney, 47 Kan. 89, 27 P. 179; Stewart ... v. Thomas, 64 Kan. 511, 68 P. 70; State v ... Northampton Tp., 52 N.J.L. 496, 19 A. 975.' ...          Upon ... the assumption, ... ...
  • M & I Marshall & Ilsley Bank v. Higdon
    • United States
    • Kansas Court of Appeals
    • September 15, 2023
    ...Scott v. Flynn, 946 S.W.2d 248, 251 (Mo. App. 1997). Kansas, however, no longer recognizes tenancy by the entirety. See Stewart v. Thomas, 64 Kan. 511, 514-15, 68 P. 70 (1902). In Kansas, when two individuals hold property together a tenancy in common is created unless the language used "ma......
  • Marioneaux v. Cutler
    • United States
    • Utah Supreme Court
    • August 1, 1907
    ... ... CUTLER, Governor, et al No. 1718 Supreme Court of Utah August 1, 1907 ... Application of Thomas Marioneaux for a writ of mandate ... against John C. Cutler, Governor, and others, constituting ... the state board of examiners, to compel ... disapproved in a later case by the Supreme Court of Kansas, ... reported under the title of Stewart v. Thomas , 68 P ... 70, 64 Kan. 511. The opinion in the later case clearly ... illustrates that the history of legislation, or the state of ... ...
  • Shields v. Williams
    • United States
    • Tennessee Supreme Court
    • July 19, 1929
    ... ... Construction, § 127, citing Meul v. People, 198 ... Ill. 258, 64 N.E. 1106; In re Pinkney, 47 Kan. 89, ... 27 P. 179; Stewart v. Thomas, 64 Kan. 511, 68 P ... 70; State v. Northampton Twp., 52 N. J. Law, 496, ... 19 A. 975 ...          A ... banker would, ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT