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property of one of the spouses, do they return to that state? or do they continue as joint property and become liable to partition between the former consorts? If the premises were community property, and no disposition is made of them in the decree, are they still a homestead? and if so, whose? The Supreme Court of the State of California has very recently considered the effect of a decree of divorce, and has determined that when accompanied by a partition of the property, it destroys the homestead character as effectually as a declaration of abandonment could do, if duly executed by both parties. This decision seems to be in direct conflict with the adjudications made in other States, and already cited and referred to in this section, in so far as it declares that the divorce renders the property at once liable to be seized upon execution. But, so far as it determines the effect of the divorce upon the joint-tenancy, this decision is, as far as we can ascertain, the only authority bearing upon the subject. We therefore regard it as sufficiently novel and important to justify its insertion in full in this place. It is as follows: "Block No. 127, in the town of Santa Barbara, which includes the premises in controversy, became in 1871 the homestead of the plaintiff and his wife, and so continued up to the time when they were divorced, by a decree of the District Court, in July, 1873. The decree directed the homestead property to be equally divided between the husband and wife, and the Commissioners having made and reported a partition, the Court confirmed the same, and adjudged that the respective portions allotted to each be held by them respectively, free and clear of all claims by or on the part of the other, the property in controversy being allotted to the plaintiff. Prior to the divorce, Chalfant, one of the defendants, recovered a judgment against the plaintiff in this action, and, after the decree of divorce was rendered, caused the premises in controversy to be levied upon under an execution issued on his judgment. The question presented is whether the premises in controversy remained the homestead of the plaintiff after they were allotted to him by the decree of divorce. The decree severed the sort of joint-tenancy of the parties in the homestead premises, which had been created by the homestead declaration, the residence of the parties,
etc., under the provisions of the homestead act. It also destroyed the right of survivorship. The joint deed of both parties is no longer essential for the alienation or abandonment of any portion of the premises. The family, for whose benefit the provisions of the homestead act were mainly designed, were severed by the decree, and neither the husband nor the wife is entitled to reside on that portion of the homestead premises which was allotted to the other. All the principal qualities of the homestead estate, except that of liability for debts, etc., having been destroyed by the decree, the latter, in our opinion, was also destroyed. The decree was as effectual in its results as would have been a declaration of abandonment. It results from these views that the portion of the property which was allotted to the plaintiff was liable to execution for the payment of his debts." But it is evident that in this decision much stress is laid upon the fact that the decree had directed a partition of the property, and that this direction had been fully executed by allotting a specified part of the homestead to each of the late spouses. Had no such partition been made, both husband and wife would still have been entitled to occupy every part of the homestead premises, their joint deed would still have been requisite to transfer the title thereto in severalty; and it is possible that with these circumstances in view, the Court would have reached a different conclusion as to the liability of the lands to seizure under execution. This opinion contains the general statement that the decree severed the jointtenancy. But whether this severance was produced by that portion of the decree destroying the marital relations of the parties, or by the portion allotting to each a parcel of the land to be held in severalty, does not clearly appear in the opinion. However, as this latter part of the decree, especially when carried into effect by an actual partition, was sufficient to transform the cotenancy into two estates in severalty, it is most probable that the general language employed by the Court was not designed as an expression of its opinion upon the effect of a divorce upon the joint-tenancy formerly existing between the spouses, unless the decree
1 Shoemake v. Chalfant, 47 Cal. 432.
of divorce was followed by a partition of the homestead property.
2 62. Survivorship is the grand incident of joint-tenancy. In most of the States, as we have seen, the homestead is not a new estate. It does not change the title, but merely subordinates it to the interests of the family. In these States, as the title during the life of the claimant was not altered by the homestead law, so, after his death, it descends to his heirs as it would have done independent of its homestead character. But though thus descending to the heirs, it is held by them, as it was held by their ancestor, subject to the homestead right of the wife and minor children.1 In some of the States the wife, or the wife and children, upon the decease of the claimant, become the absolute owners of the homestead. But this is not the result of the right of survivorship, but of provisions regulating the descent of the claimant's estate. But where, as in California, Idaho, and Nevada, a homestead is a joint-tenancy, of which husband and wife are the cotenants, the doctrine of survivorship is given its full effect, and the homestead vests fully and absolutely in the survivor. As in the case of joint-tenancy at common law, the title of the survivor is paramount to the claims of the children and other heirs of the deceased." This feature of the homestead law seems well calculated to thwart a portion of the design of every claimant in filing his or her declaration of homestead. This design is as much to secure a home for the children as for the parents. But when either parent dies, and the children are, more than ever before, in need of the advantages of home, the principle of survivorship leaves them no interest in the homestead, and makes them mere tenants by sufferance where they ought to be claimants by right.
1 Size v. Size, 24 Iowa, 580; Meader v. Place, 43 N. H. 307; Meyer v. Meyer, 23 Iowa, 359; Bassett v. Messner, 30 Tex. 604; Cotton v. Wood, 25 Iowa, 43; Hamblin v. Warnecke, 31 Tex. 91; Burns v. Keas, 21 Iowa, 257.
See Comp. Laws Kansas, p. 392, sec. 2.
Wixam's Estate, 35 Cal. 320; Rich v. Tubbs, 41 Cal. 34; Smith v. Shrieves, 13 Nev. 303; Estate of Headen, 52 Cal. 294.
TENANCY BY ENTIRETIES.
Definitions, § 63.
Difference from Joint-Tenancy, § 64.
States in which it prevails, § 65.
States in which it does not prevail, § 66.
Of what Estates it may be, § 67.
Of Personal Property, § 68.
How Created, § 69.
Husband and Wife take as one person, § 70.
Cases holding they cannot take by Moieties, 71,
Cases holding they can take by Moieties, § 72.
Power of Husband over, § 73.
Sale under Execution, § 74.
Power of Husband under Statutes, § 75.
863. Definitions.-"An estate by entireties arises on a gift to two persons being, at the time the gift takes effect, husband and wife." "A tenancy by entireties is peculiar," says Mr. Preston, "to a gift to two persons being, at the time the gift takes effect, husband and wife." Why the two celebrated and very accurate writers from whose works the preceding quotations have been made ever spoke of an estate by en
Jickling on Anal. L. & Eq. Estates, 252.
* 2 Preston on Abstracts of Title, 39. The same author, in his work on estates, gives a more complete definition. "Tenancy by entireties is when husband and wife take an estate to themselves jointly, by grant or devise, or limitation of use, made to them during coverture, or by grant, etc., to them, which is in fieri at the time of their marriage, and completed, by livery of seisin or attornment, during the coverture." "The husband and wife have not either a joint estate, a sole or several estate, nor even an estate in common. From the unity of their persons by marriage, they have the estate entirely as one individual, and on the death of one of them, the entire tenement will, for all the estate of which they are seized in this manner, belong to the survivor, without the power of alienation or forfeiture of either alone, to prejudice the right of the other." (1 Preston on Estates, 131.)
tireties as though its only origin was by gift, is altogether unaccountable. Mr. Jickling, on the very next page after giving the definition first quoted, speaks of estates acquired by husband and wife on a purchase by them both, evidently using the word purchase in a sense which did not include the idea of a gift. And certainly of the many cases upon this subject to be found in the reports, not one implies that this estate is necessarily founded upon a gift. A tenancy by entireties arises whenever an estate vests in two persons, they being, when it so vests, husband and wife.' It is not essential that they should be married when the grant or gift is made, if thereafter, when the gift vests, they are husband and wife. Hence, if a devise be made to a man and woman, and before the death of the testator they marry, or if a feoffment be made to them while they are single, of which livery is made after marriage; or if they recover on a voucher to warranty annexed to an estate of which they were joint-tenants—in all these cases, they take by entireties.2
64. Difference between Joint-Tenancy and an Estate by Entirety.-A joint-tenancy is distinguished by four unities; a tenancy by entirety by five. The former may be vested in any number of natural persons more than two; the latter can be vested in but two natural persons, and these two are regarded as but one in law. Joint-tenants take by moietieseach is seized of an undivided moiety of the whole: husband and wife take each an entirety, and are seized per tout but not per my. Joint-tenants may each alien his interest in the estate: husband and wife must alienate jointly. The former may sever their estates at pleasure: the latter hold an estate which, while it remains theirs, is inseverable. The former can have partition; but the latter cannot, unless indeed in a divorce proceeding severing their matrimonial rela
In this description of tenancy by entirety, we have excluded the idea that the tenancy must be created by gift or purchase. Though not ordinarily acquired by descent, this is so only because husband and wife rarely succeed to property as heirs of the same person. But, on so acquiring it, they are tenants by entireties. (Gillan v. Dixon, 65 Pa. S. 395.)
* Jickling Anal. L. & Eq. Estates, 252; Co. Litt. 187; Nicholls v. Nicholls, cited Vin. Abr. BABON & FEME; Plowd. Comm. 483.
3 Topping v. Sadler, 5 Jones, 357.