Howell v. Folsom

Mr. Chief Justice Bean delivered the opinion. On November 21, 1895, the defendant Maggie Folsom, being the owner, with her husband, of an estate by the entirety in lots 3 and 4, block B, in Simpson’s Addition to Sar lem, mortgaged the same to plaintiff to secure a loan of $350; and, the husband,having subsequently died, this suit wasr instituted to- foreclose the mortgage, but the court held it void because the husband did not join in its execution, and plaintiff appeals. 1. ■ ■ It is argued in support o-f the decree of the court below that neither sp'ouse can convey an- estate by the entirety without the- assent of the other, and therefore the mortgage sought to be foreclosed is void, even as against the mortgagor. It is often said in judicial opinions that at common law, under a conveyance of real property to husband and wife, both are seised of the entirety, and neither can alienate or dispose of any part of the estate without the consent of the other. It is believed, however, this means that “one cannot sever the interest or make any disposition of the estate so ás to affect the right of survivorship” : Enyert v. Kepler, 118 Ind. 34 (10 Am. St. Rep. 94, 20 N. E. 539); Ames v. Norman, 4 Sneed, 683 (70 Am. Dec. 269, note). According to [187] the great weight of authority, at common law a conveyance of the estate by the husband during- the lifetime of the wife is valid as against him, and vests the fee in the purchaser in case the husband survive the wife. Mr. Tiedeman thus states the rule: “During coverture the husband has the entire control of the estate, may convey it away, and it is liable to be sold under execution for his debts. If the husband.survives the wife, this conveyance of it to a stranger will be as absolute as if the estate had been one in severalty. But, if the wife survives the husband, she acquires, by right of survivorship, the entire interest in the land, and is entitled to her proper action for the recovery oh. possession” : Tiedeman, Real Prop., § 242.- And Mr. Washburn says: “If the husband convey the entire(estate during coverture, and dies, his conveyance will not have affected her rights of survivor-ship to the entire estate. -But-if, in such case, the husband survive, his conveyance becomes as effective to pass the whole estate as it would have beqn had the husband been sole seised when he conveyed it”: 1 Washburn, ReaLProp. (5 ed.), 707. See, also, 1 Bishop, Mar. Worn., §621; 1 Ballard, Real Prop., § 240; 15 Am. & Eng. Enc. Law" (2 ed.), 848; Den v. Hardenbergh, 10 N. J. Law, 42 (18 Am. Dec. 371, note); Branch v. Polk, 61 Ark. 388 (30 L. R. A. 324, 328, note, 54 Am. St. Rep. 266, note, 33 S. W. 424); Hiles v. Fisher, 144 N. Y. 306 (43 Am. St. Rep. 762, 768, note, 30 L. R. A. 305, note, 39 N. E. 337). We take the rule, therefore, to be abundantly established that a husband can convey an estate held by himself and wife as tenants by the entirety, and that such conveyance will vest the fee in the purchaser, if the husband survive the wife. And, as our statute has given the wife power and authority to sell and convey her property “to the same extent and in the same manner that her husband can property belonging to him” (Laws 1893, p. 170, amending Section 2992, Hill’s Ann. Laws), we think it clear she may convey an estate by the [188] entirety with like effect as her husband. The right at common law of the husband during coverture to the control and usufruct of the land, and the inability of the wife to convey without her husband joining in the deed, were not incidents of such an estate, but of the marital disabilities and rights which have been removed and enlarged by modern legislation. The courts of other states have held that, under acts relating to married women, of similar import to- ours, the wife is entitled to the same use and benefit of an estate by the entirety as the husband, and has the same power of alienation. Thus, in Buttlar v. Rosenblath, 42 N. J. Eq. 651 (59 Am. Rep. 52, 9 Atl. 695), it was held, under the legislation of that state, which preserves to- married women their separate rights of property, that the wife is endowed with the capacity, during the lives of herself and husband, to hold in her possession one-half the estate held by them as tenants by the entirety in common with her husband, as fully as if she were a single woman. In Hiles v. Fisher, 144 N. Y. 306 (39 N. E. 337, 30 L. R. A. 305, 43 Am. St. Rep. 762); a husband and wife were seised of an estate by the entirety. The husband alone mortgaged the entire estate to secure his individual debt, and subsequently conveyed the property to his wife. Thereafter the mortgage was foreclosed, and the purchaser at the sale insisted that he was entitled to the possession of the entire property during the joint lives of the husband and-wife, and to> the fee in case the husband survived the wife, while the wife maintained that the mortgage given by her husband was void because not signed by her, and that, his interest having been conveyed to her, she was the absolute owner of the property. But the court held, in a very satisfactory opinion by Mr. Chief Justice Andrews, that, under the general statutory provisions of that state giving married women power to control or dispose of their own property, a husband and wife are entitled to the rents and profits of an estate by the entirety in separate moieties, [189] and that a purchaser at a foreclosure sale, under a mortgage given by the husband alone when the wife is alive at the time of the sale, obtains the husband’s interest, subject to the right of the wife, if she survive him, with a right to use an undivided half during the joint lives of husband and wife, and to the fee if the husband survive. Again, in Branch v. Polk, 61 Ark. 338 (33 S. W. 424, 30 L. R. A. 324, 54 Am. St. Rep. 266), under a statute authorizing a married woman to' dispose of her property as a feme sole, it was held that she might convey or mortgage her interest in an estate by the entirety, subject to the right of survivorship in her husband, without his joining in the instrument, and that such mortgage was valid as against the wife, she having survived her husband. 2. It'was suggested at .the argument that under Section 3003, Hill’s Ann. Laws, a married woman cannot convey her real property without her husband joining in the deed. But that section has been modified or amended by subsequent legislation (Laws 1893, p. 170, which amends Section 2992, Hill’s Ann. Laws), and she may now sell or convey her property by her sole deed: Velten v. Carmack, 23 Or. 282 (31 Pac. 658, 20 L. R. A. 101). The decree of the court below is therefore reversed, and a decree will be entered here as prayed for in the complaint. Reversed.