Whyman v. Johnston

• Decision Date: 05 February 1917
• Docket Number: 8741.
• Citation: 62 Colo. 461,163 P. 76
• Parties: WHYMAN v. JOHNSTON et al.
• Court: Colorado Supreme Court

163 P. 76

62 Colo. 461

WHYMAN v. JOHNSTON et al.

No. 8741.

Supreme Court of Colorado

February 5, 1917

Error to District Court, Boulder County; Neil F. Graham, Judge.

Suit for partition by Frances C. Johnston and another against Laura C. Whyman. Judgment for plaintiffs, and defendant brings error. Affirmed.

E. T Wells, of Denver, and H. E. Rowland, of Boulder, for plaintiff in error.

Bert Martin, of Denver, for defendants in error.

GARRIGUES J.

Action by defendants in error as petitioners, to partition certain real estate in the city of Boulder. In August, 1883, Benjamin and Sarah Woodbury, being then husband and wife, purchased from one Culver, and by deed of that date he conveyed to them, the premises in question without any statement in the deed as to what their tenancy should be. In October, 1909 she died leaving certain heirs, and in January, 1910, he died leaving other heirs. Both died intestate. Respondent answered claiming that Woodbury and his wife were seised of an estate as tenants in entirety, and upon her death that the estate passed in entirety to him, and upon his death intestate descended to his heirs. Petitioners below, defendants in error here, claim that the conveyance to Woodbury and his wife vested in each an undivided one-half interest in the estate as tenants in common; that estates in entirety no longer exist in Colorado except by express words showing such an intention. The court held with petitioners' contention, sustained a demurrer to the answer, and partitioned the premises as prayed. Respondent brings the case here for review.

The only question involved is whether the deed from Culvert conveyed separate estates to Woodbury and his wife as tenants in common, or whether they took the estate by entireties.

1. Under the common law of England, from which estates by entireties sprang, husband and wife in legal contemplation constituted but one person. They were merged by marriage into one legal entity or personality, and plurality of persons was not recognized. The wife had no legal existence; during marriage her identity was incorporated in that of her husband, and in the eye of the law they constituted but one person, and he represented the person. She was incapable of making a contract, since they constituted but one person and, as it took two to make a contract, all contracts between husband and wife and all sales and conveyances between them were absolutely void. This unity of person gave to the husband substantially all the property of the wife, which he could mortgage, sell, or dispose of at will. She had nothing whatever to say about it; it was liable for the payment of his debts and passed at his death to his estate. Even her personal earnings belonged to him, and, if she bought land with such earnings, it was his. In short, at common law, the wife's separate independent existence was lost; she could neither sue nor be sued.

This common-law disability affecting the property rights of the wife has been changed by our statute. Now, in carrying on business and acquiring and disposing of property, real and personal, during marriage, she is as distinct and independent from her husband as others, or as though the marriage relation did not exist. Our statute provides that the property which any married woman may own at the time of her marriage, or which shall come to her by descent, devise bequest, or gift, and the rents, profits, issues, and proceeds therefrom, shall be her sole and separate property, notwithstanding her marriage, and shall not be subject to the disposal of her husband or liable for his debts. She may now carry on any trade or business in her own name or perform any labor or services on her sole and separate account, and the earnings from her trade, business, labor, or services are her sole and separate property and estate, which she may use or invest in her own name. She may upon her own account and in her own name contract debts, execute promissory notes, bills of exchange, or other written instruments, and enter into any contract or business the same as if she were sole. She may bargain for and sell and convey real and personal property and enter into any contract in reference to it with her husband or others, and her husband is not required to unite with her in the execution of a deed. She may sue and be sued in all matters the same as if she were sole, and any judgment, order, or decree pronounced against her may be...