Bennett v. Child

By the Court, Downbe, J. The first question presented for consideration in this case is, can the creditors of Bennett seize and sell on execution against him land conveyed to him and his wife? This court held in Ketchum v. Walsworth, 5 Wis., 95, that where an estate is granted to husband and wife they [365] take by entireties, and not by moieties ; and that tbe busband could not alienate or incumber tbe estate so as to prevent tbe wife, after bis death, from taking tbe whole as survivor. It is said by tbe learned judge who delivered tbe opinion in that case, that “there can be no partition during coverture, for this would imply a separate interest in each; and-for the same reason neither can alien without tbe consent of the'other any portion or interest therein.” We are inclined to think this last remark is not entirely correct. All the authorities ■ agree that the husband during coverture cannot alienate the whole or any part of the estate, so as to give title after his death, as against the wife surviving him. But we do not understand that at common-law he could not convey his life interest'or estate therein. In the case of Barber v. Harris, 15 Wend., 615, the court say of such an estate: “ During the life of the husband he undoubtedly has the absolute control of the estate of the wife, and can convey or mortgage it for that period. By marriage he acquires, during coverture, the usufruct of all her real estate which she has in fee simple, fee tail, or for life.” If the husband can convey or mortgage the land, and give to his grantee the use of the entire real estate during his life, we see no good reason why his creditors cannot seize it on execution ; for it is clear that-under our laws a life estate is subject to be seized and sold on execution. If this interest of the husband is not subject to execution, then he has the right to use, sell, convey, or mortgage real estate of great value over and above his homestead, which his creditors cannot reach. > In the case of Jackson v. McConnell, 19 Wend., 178, Cowen, J., says of such an estate :■ “ The husband’s creditors cannoj? take his interest in execution.” He cites to this point Rogers v. Grider, 1 Dana, 242, and Roanes v. Archer, 4 Leigh, 550. We have carefully examined these cases, and it appears to us that they entirely fail to sustain the position. We are of opinion that lands granted or conveyed to husband and wife are held by them as at common law. R. S., ch. 83, sec. 45. It [366] is clear to us that section 3, ch. 95, was not intended to apply to estates of this kind. We must therefore hold, that 'the husband’s interest, at least his life estate, is subject to execution, except such part* as may be exempt as a homestead. Eighty acres were sold under the execution; forty of it is claimed as a homestead. What would be the effect upon the sale if this claim is established ? Should the sheriffs’s certificate be set aside entirely, or the purchasers be ordered to release the homestead from the sale, and be permitted if they choose to take a deed of that part of the premises thus released? If eighty acres had been sold on the execution, and the defendant therein had title to only one half thereof, the purchaser (in ease he purchase believing the title to the whole good in the execution defendant, and applied to the court without unreasonable delay) might have had the sale vacated; or, if he preferred, he could take.a sheriff’s deed which would give him title to only one half of what he purchased. We see no reason why the purchasers at the execution sale in this case might not, even if the respondents should prevail as to the homestead, if they so elected, receive a deed of the part not so exempt. It is for the purchasers, not the ’defendant in the execution, to say whether the sale shall be vacated, in case the purchasers could acquire no title to a part of the land sold. It may be that the part to which they get title is worth all they pay. The complaint was evidently not framed with a view to relief on the ground of the homestead exemption; and if the right of such exemption is to be litigated, the complaint should be amended. We therefore do not pass upon that question. We hold that the execution sale was not void or voidable at the suit of the plaintiffs as to the land not exempt as a homestead; that the land, or so much of it as was not exempt as a homestead, was subject to execution; and that the purchasers at the execution sale acquired such title to the premises not so exempt, as would give them the use of them during the life of the husband. If the land was purchased entirely with the [367] money of tbe husband, or if be should survive the wife, the purchasers might perhaps acquire a larger estate. It is not necessary for us now to decide whether they would or not. The position that “Childs, Gould & Co. ” is not a party known to the law, and that the judgment in their favor is void, is untenable. If the defendant in that suit desired to take advantage of that defect or irregularity, he should have appeared be fore the justice and made his objection before judgment. The judgment of the circuit court is reversed, with costs, and the cause remanded for further proceedings.