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274. Sale under Execution. In a recent work on Judicial Sales, the statement is made that "no separate proceeding against one of them during their joint lives will, by sale, affect the title to the property as against the other one as survivor, or as against the two during their joint lives." The rule as thus laid down, ignores the interest which the husband, by his marital rights, has in the property of his wife. As the husband could, by the common law, dispose of all chattels and chattel interests of the wife, and of the possession of her real estate during their joint lives, he had such an interest in her estate as might be subjected to involuntary alienation by sale under execution. Hence, there seems but little doubt that where the marital rights of the husband in the wife's property remain as at common law, they are subject to seizure and forced sale under execution; and that the purchaser at such sale will acquire an interest in the estate sold, by virtue of which he will succeed to all the rights and privileges which the husband had, by law, in the property sold.2 It is true that a few American cases are inconsistent with this rule. Most of them seem to have been decided, so far as this point is concerned, without any consideration of the authorities, and without any necessity of determining this question. But in Indiana, this point was recently considered at great length, and most of the authorities bearing on the subject were commented upon by the Court. The result was a denial of the husband's marital powers over an estate held in entireties, including a denial of his right to dispose of the possession of real estate, or in any way to transfer to a third person, by voluntary or involuntary alienation, any interest which could be asserted against the wife, even during her husband's lifetime. The Court said: "As between husband and wife, there is but one owner, and that is neither the one
2 P. Wms. 364; Bates v. Dandy, 2 Atk. 207; McCurdy v. Canning, 64 Pa. St. 40; Bennett v. Child, 19 Wis. 365; Torrey v. Torrey, 14 N. Y. 430; Jackson v. McConnell, 19 Wend. 175; Barber v. Harris, 15 Wend. 617; Ames v. Norman, 4 Sneed, 692; Farmer r. Gregory, 49 Barb. 155.
Rorer on Judicial Sales, sec. 549.
2 Ames v. Norman, 4 Sneed, 692; Stoebler v. Knerr, 5 Watts, 181; French v. Mehan, 56 Pa. St. 289; McCurdy v. Canning, 64 Pa. St. 41; Bennett v. Child, 19 Wis. 362; Litchfield v. Cudworth, 15 Pick. 23; Brown v. Gale, 5 N. H. 416.
3 Jackson v. McConnell, 19 Wend. 178; Thomas r. De Baum, 1 McCarter Ch. 40.
nor the other, but both together. The estate belongs as well to the wife as to the husband. Then, how can the husband possess any interest separate from his wife, or how can he alienate or encumber the estate, when all the authorities agree that the wife can neither convey nor encumber such estate? We are of the opinion that, from the peculiar nature of this estate, and from the legal relations of the parties, there must be unity of estate, unity of possession, unity of control, and unity in conveying or encumbering it; and it necessarily and logically results that it cannot be sold upon execution for the separate debts of either the husband or of the wife. The estate is placed beyond the exclusive control of either of the parties, or the reach of creditors, unless it can be successfully attached and set aside for fraud."1
275. Husband's Powers affected by Statutes.-In many of the States, the common law in regard to the marital rights of a husband in the property of his wife, has been materially modified by statute. These statutes influence the law in regard to estates held in entireties as well as in regard to those held by the wife in severalty. Thus, in Pennsylvania, the act of April 11, 1848, declared that "every species of property of whatever name or kind, which may accrue to any married woman during coverture, shall be owned, used, and enjoyed by such married woman as her own separate property, and shall not be subject to levy and execution for the debts of her husband, nor shall such property be sold, conveyed, mortgaged, or transferred, or in any manner encumbered, by her husband, without her written consent first had and obtained." Under this act, it has been determined that a purchaser of the husband's interest in property held in entireties, either at a voluntary or an involuntary sale, can never assert it against the wife, because if the claims of such purchaser were recognized, the rights of the wife would be disregarded: 1st, by destroying her estate by entireties, and creating out of it a tenancy in common; 2d, by depriving her of her possession with her husband, and obliging her to hold possession with a stranger; 3d, by taking away her property without her
1 Chandler v. Cheney, 37 Ind. 408.
assent. The principle thus asserted in Pennsylvania, has, under a very similar statute, been affirmed by a number of decisions in Indiana.2
76. Dissolution of the Tenancy by Death or Divorce.— In the event of the death of either spouse during the continuance of an estate held by entireties, the survivor continues seized of the whole. During the continuance of the marital relations, neither husband nor wife can change the character of the tenancy so as to become a tenant in common, nor a joint-tenant, nor an owner in severalty. But by a decree of divorce, the legal unity of person, on which the estate depended, is destroyed; "one legal person has been resolved by judgment of law into two distinct, individual persons, having in future no relations to each other; and with this change in their relations, must necessarily follow a corresponding change of the tenancy dependent upon the previous relation. As they cannot longer hold in joint seisin, they must hold by moieties." But it is claimed that if a husband alienate property held by entireties, the alienee takes a title not dependent on a continuance of the marital relations; and that the wife is not, by virtue of the annulment of the marriage, entitled to the possession of her moiety from her husband's grantee. The purchase, "not made in view of the contingency of the wife's divorce, cannot be affected by it." But in the event of the death of a husband, the rights of the alienee of property of which the husband could make no absolute disposition, cease; and the surviving wife may recover possession by an action of ejectment.5
McCurdy v. Canning, 64 Pa. St. 41.
*Davis v. Clark, 26 Ind. 424; Arnold v. Arnold, 30 Ind. 305; Simpson v. Pearson, 31 Ind. 1; Chandler v. Cheney, 37 Ind. 413.
3 Ames v. Norman, 4 Sneed, 696; 2 Bright on Husband and Wife, 365.
* Ames v. Norman, 4 Sneed, 696.
5 Brownson v. Hull, 16 Vt. 309.
Generally Abolished in United States and in Canada, § 85.
277. Definitions.-"Parcenary is a title by DESCENT, and arises on the death of a person seized of an estate of inheritance, leaving two or more females lieneal or collateral, his next heir." "Coparceners are several persons taking lands, or any undivided share of lands, held for an estate of inheritance by descent." This estate arises "where lands of inheritance descend from the ancestor to two or more persons, as his daughters, sisters, aunts, cousins, or their representatives, or the males in gavelkind." "This tenancie in the ancient books of law is called adæquatio, and sometime familia herciscunda, an inheritance to be divided; and many times parceners are called coparceners." The definition first quoted indicates that parceners are always females. In this it is erroneous, for parceners may be males as well as females. Males are in some instances made parceners by direct descent from their common ancestor, and in other instances they become parceners by being heirs to a female parcener.3
'Jickling on Anal. L. & Equitable Estates, 222.
* Preston on Abstracts of Title, 68. See also 2 Bl. Comm. 187.
34 Dane's Ab. 758.
+ Co. Litt. 164 b.
> The most concise and perfect definition of coparcenary which we have seen is that in Burrill's Law Dictionary, (title Estates,) namely: "An estate acquired by two or more persons (usually females) by descent from the same ancestor."
78. "Parceners are of two sorts, to wit: parceners according to the course of the common law, and parceners according to custome. Parceners after the course of the common law, are, where a man, or woman, seized of certain lands or tenements in fee-simple or in taile, hath no issue but daughters and dieth, and the tenements descend to the issue, and the daughters enter into the lands or tenements so descended to them, then they are called parceners, because by the writ which is called breve de participatione facienda, the law will constrain them that partition shall be made among them."1 Parceners according to the course of the common law, include aunts, cousins, and sisters, to whom lands descend from the same person. But if there be but one daughter, she is not called a parcener, but "daughter and heire."2 "Parceners by custome are, where a man seized in fee-simple, or in feetaile, of lands or tenements which are of the tenure called gavelkind within the countie of Kent, and hath issue divers sons and die, such lands or tenements shall descend to all the sons by custome, and they shall equally inherit and make partition by the custome as females shall do." There seems to be no difference between the rights of parceners by custom and parceners by the course of the common law.*
79. Parceners by the common law must be either females or the heirs of females. All the daughters of a man are equally his heirs, whether born of the same or of different mothers. They are therefore all equally parceners. Coparceners can acquire their estate by descent only. If two sisters acquire lands by purchase, they are not parceners, but joint-tenants, or tenants in common." If a coparcener die leaving a male heir, he will succeed to her estate, and will hold the same as a coparcener. By this means, men become parceners even by the course of the common law. A man may be parcener with himself. This happens when one-half of an estate descends to him from his father, and one-half from his mother. If he die in such case, without lineal de
'Litt. sec. 241; Chitty on Descents, 76.
Litt. sec. 242.
3 Litt. sec. 265; Chitty on Descents, 182. Leigh v. Shepherd, 2 Bro. & B. 465. 5 Chitty on Descents, 76. 6 Chitty on Descents, 78.
7 Chitty on Descents, 76; Litt. sec. 254.