Ward Terry & Co. v. Hensen

• Decision Date: 08 May 1956
• Docket Number: No. 2720,2720
• Citation: 75 Wyo. 444,297 P.2d 213
• Parties: WARD TERRY AND COMPANY, a corporation, Plaintiff and Respondent, v. Lloyd E. HENSEN and Norma L. Hensen, Defendants and Appellants, and The Wyoming National Bank of Casper, a corporation, Defendant.
• Court: Wyoming Supreme Court

Page 213

297 P.2d 213

75 Wyo. 444

WARD TERRY AND COMPANY, a corporation, Plaintiff and Respondent, v. Lloyd E. HENSEN and Norma L. Hensen, Defendants and Appellants, and The Wyoming National Bank of Casper, a corporation, Defendant.

No. 2720.

Supreme Court of Wyoming.

May 8, 1956.

Robert A. Burgess, Casper, for appellants.

W. J. Wehrli, Houston G. Williams, Casper, for respondent.

BLUME, Chief Justice.

On December 13, 1950, one Prewitt and wife gave a warranty deed to Lloyd E. Hensen and Norma L. Hensen, husband and wife, covering lot 23, block 4, in East Dale Addition to the City of Casper, Wyoming. On March 7, 1953, Lloyd E. Hensen and Norma L. Hensen gave a note to Ward Terry and Company, the plaintiff, then known as Robert F. Clark Company, in the sum of $5,280.44, payable in installments and secured by a mortgage of the same date on the property hereinabove mentioned. Norma L. Hensen was born on July 2, 1932, and at the time of the execution of the note and mortgage herein was less than 21 years of age.

On September 10, 1953, Ward Terry and Company, a corporation, above mentioned, filed a petition in the district court of Natrona county, Wyoming, against Lloyd E. Hensen and Norma L. Hensen and the Wyoming National Bank of Casper alleging default in the payments of the installments agreed to be paid and asked judgment for the amount due in the sum of $5,350.16. The petition also alleged that the Wyoming National Bank of Casper had a first mortgage against the property in the sum of $6,078.54. Plaintiff accordingly asked for judgment above mentioned and a foreclosure of the mortgage above set forth, subject to the bank's mortgage.

Lloyd E. Hensen in a separate answer alleged as a defense that the above described property was on March 7, 1953, the date of the mortgage above mentioned, a homestead occupied by himself and his wife and that they now claim the property as a homestead. In a separate answer, Norma L. Hensen set forth that she disaffirmed the note and mortgage above mentioned by reason of her minority and by the answer then filed gave notice to that effect.

Judgment was entered in the case after trial thereof on April 28, 1955, finding generally in favor of the plaintiff; that Norma L. Hensen, by reason of her minority and disaffirmance, was not liable on the note and mortgage above mentioned; but gave judgment against Lloyd E. Hensen and ordered the property above described to be sold subject to the mortgage of the Wyoming National Bank of Casper. The court held that the plaintiff was entitled to the possession, rents, issues and profits of the property above described during the lifetime of the defendant Lloyd E. Hensen and appointed a receiver therefor. From the judgment so entered, the defendants Lloyd E. Hensen and Norma L. Hensen have appealed. The court did not directly pass on the question as to homestead raised by the answer of Lloyd E. Hensen, and in view of our conclusion herein we need not do so. The question raised and argued in this court relates to the nature of the interest possessed by husband and wife in an estate held by the entirety, and the real question of importance herein is as to whether or not the rents, income and profits from such an estate can be subjected to a judgment against the husband alone during the lifetime of the wife.

As stated before, the conveyance above mentioned by warranty deed was to Lloyd E. Hensen and Norma L. Hensen, husband and wife. It was accordingly a property held by the entirety. Peters v. Dona, 49 Wyo. 306, 54 P.2d 817.

'An estate by the entireties is the estate created at common law by a conveyance or devise of property to husband and wife. Under such a conveyance or devise husband and wife, by reason of their legal unity by marriage, take the whole estate as a single person with the right of survivorship as an incident thereto, so that if one dies, the entire estate belongs to the other by virtue of the title originally vested.' 26 Am.Jur. § 66, p. 692.

'An estate by the entireties involves the unities of time, title, interest, and possession, as well as the husband and wife unity of ownership.' 26 Am.Jur. § 71, p. 698.

Entirety in this connection means indivisibility. The estate is owned not by one but by both as an indivisible entity and has the characteristics of a joint tenancy by reason of the fact that the survivor takes all. But the estates differ in the fact that joint tenants may divide the estate, but tenants by the entirety cannot do so except by the joint act of husband and wife. At common law the husband had the right, in his own right and jure uxoris, to the control, possession and usufruct of property in which he and his wife had an estate by the entireties. That rule has been considerably modified by the rights given to women under modern statutes.

Article 6, § 1, of our constitution provides that:

'Both male and female citizens of this state shall equally enjoy all civil, political and religious rights and privileges.'

Civil rights mentioned in the constitution include the rights of property, marriage, protection by the laws, freedom of contracts, trial by jury, etc. 14 C.J.S., Civil Rights, § 1, p. 1159.

Section 50-201, W.C.S.1945, provides in part as follows:

'All the property, both real and personal belonging to any married woman as her sole and separate property, or which any woman hereafter married owns at the time of her marriage, or which any married woman during coverture acquires in good faith from any person whomsoever, or by descent or otherwise, together with all rents, issues, increase and profits thereof, shall, notwithstanding her marriage, be and remain during coverture her sole and separate property under her sole control and be held, owned, possessed and enjoyed by her the same as though she were sole and unmarried, and shall not be subject to the disposal, control or interference of her husband, and shall be exempt from execution or attachment for the debts of her husband * * *.'

Section 50-202, W.C.S.1945 provides that the wife may sell, convey or contract for her property as if unmarried. Sections 50-203, 50-204, 50-205, provide that she may sue or be sued, that she may make a will and that she may carry on business. What is the effect of such provisions? It is rather difficult, as counsel for plaintiff point out, to determine the rights of the wife in an estate by the entirety under the statutory provisions above mentioned and the courts of the various jurisdictions have arrived at different results. Twelve states have held that the statute conferring rights of women as to their separate property have swept away estates by the entirety. Annotation, 141 A.L.R. 181. These states are Alabama, California, Colorado, Illinois, Iowa, Maine, Minnesota, New Hampshire, Oklahoma, South Carolina, West Virginia and Wisconsin. The courts of the majority of the states, however, have held that estates by the entirety have not been abrogated. Annotation, 141 A.L.R. 187 and subsequent pages. Most of the statutes, as ours, do not mention estates by the entirety and so they are generally held to be still in existence. The courts differ as to the nature and extent of the estate, and various reasons are advanced in this connection. Annotation, 141 A.L.R. 187 to 204.

In Massachusetts it is held that the estate by the entirety is the same as that at common law, under which the husband had full control of the estate during the lifetime of the wife and was entitled to the usufruct thereof which he could convey or mortgage and which could be sold in favor of creditors. Pray v. Stebbins 141 Mass. 219, 4 N.E. 824, 55 Am.Rep. 462; Raptes v. Pappas, 259 Mass. 37, 155 N.E. 787. So it is held in Lewis v. Pate, 212 N.C. 253, 193 S.E. 20, that 'the husband, during coverture and as between himself and the wife, has absolute and exclusive right to the control, use, possession, rents, issues, and profits of property held as tenants by the entirety.' We cannot follow these cases. They are contrary to the great weight of authority which hold that the exclusive right to rents, profits and usufruct of an estate by the entirety on the part of the husband alone has been swept away by modern statutes. Fairclaw v. Forrest, 76 U.S.App.D.C. 197, 130 F.2d 829, 143 A.L.R. 1154 and cases thereafter cited. 41 C.J.S., Husband and Wife, § 34, p. 463, notes 52 to 54; 26 Am.Jur. 709. That exclusive right at common law was not part of the nature of an estate by the entirety, but arose out of the fact that the husband, by reason of his marital rights (jure uxoris) had control of all of the property of his wife whether owned by her as her separate estate or by her and her husband jointly. See 26 Am.Jur. 684 and 709. A number of cases hold that a woman's interest in property held by her and her husband by the entirety is her separate property within the meaning of the statutes giving her control of her property. 41 C.J.S., Husband and Wife § 34, p. 465, note 69. But whether that is correct or not, it is at least certain that under statutes like ours, the husband does not control property owned by her alone. His common-law right has been taken away at least to that extent. The wife has been given the right to control her own property. Her disability to do so has been swept aside. Logic and reason tell us that this should apply throughout and to every kind of property she has. She has an interest in property held by her and her husband by the entirety, and to say that she has no part in the control of the latter would be rather anomalous and contrary to the spirit if not the letter of our constitutional and statutory provisions heretofore cited. See Alfred v. Bankers' & Shippers' Ins. Co., 167 Tenn. 278, 68 S.W.2d 941.

But while the cases generally hold that the exclusive control has been swept away they do not agree on the question as to whether or not any of the income, rents, profits, and usufruct may be controlled by either...