Shinn v. Shinn , 42 Kan. 1 ( 1889 )

The opinion of the court was delivered by

Valentine, J.:

The only questions presented in this case are with reference to the character of the title, interest and estate conveyed by Abner Shinn on April 17,1882, to his son, Eugene F. Shinn, and to his son’s wife, Ella Shinn, and whether such title, interest and estate have since been forfeited and lost, or not. It is not claimed in this case nor even pretended that Abner Shinn did not have the power to convey tó his son and to his son’s wife any kind of estate, interest or title in or to the land which he might have chosen to convey, for he held the whole- of the estate and a perfect title, and could convey just what he chose. The questions presented, however, are these: What did he convey, and has the same been forfeited or lost ? It seems to be admitted that Abner Shinn conveyed or transferred to his son and to his son’s wife an interest of some kind in the property in question for the period of ten years, subject to a condition subsequent, and conveyed to them the full and complete title and estate forever afterward, subject to a condition precedent; but it is claimed by Abner Shinn that these conditions were afterward brought into existence, and that they so operated as to produce a forfeiture of the grantee’s interest in the property, and a transference of the same back to the grantor. It is probable, however, that the intention of the grantor was to convey to the grantees the entire estate and a fee-simple title, modified only by a limitation upon the power of the grantees for ten years to “sell, mortgage, or incumber” the property. The conditions upon which the property was conveyed as expressed in the deed, are that the grantees should not “sell, mortgage or incumber the same in any way for the period of ten years” from April 17, 1882. It is not claimed that the grantees have sold or attempted to sell the property, or that they have mortgaged or attempted to mortgage the same, but it is claimed that by their acts and sufferance they caused the same to be incumbered in the following manner, to wit: After this deed was executed, and on August 6, 1884, Eugene F. Shinn commenced an action for a divorce against his wife, Ella Shinn. Such action was afterward dismissed; but while it was pending the court rendered a judgment in favor of Ella Shinn and against Eugene F. Shinn for $30 as alimony; and it is claimed that this judgment is a lien and an incumbrance upon the lpjud, and such an incumbrance as was contemplated when the property was conveyed by Abner Shinn to Eugene F. Shinn and his wife, and therefore it is claimed, that such judgment has so operated as to divest Eugene F. Shinn and his wife of all their right, title and interest in and to the property, and to restore the same to Abner Shinn. Is this claim correct ? Did the aforesaid judgment work a forfeiture of the estate of Eugene F. Shinn and his wife, and reinvest all interest in the property in Abner Shinn? Now whatever interest or title may have been conveyed or transferred by Abner Shinn to his son and to his son’s wife as between the grantor himself and the grantees, whether the same were great or small, and whatever may have been the effect of the conditions contained in the deed, there was nothing contained in the deed or elsewhere prescribing what kind of an estate the grantees should take as. between themselves; hence under-the authority of the case of Baker v. Stewart, 40 Kas. 442, et seq., 19 Pac. Rep. 904, et seq., and the numerous cases cited in that case, they took their interests in the property, whatever such interests were, by entireties, and not as tenants in common or as joint tenants. In other words, each took the entire estate conveyed to him and did not take a separate portion of any estate. In such a case one alone, without the consent of the other, could not sell, mortgage or incumber the property. It would take the affirmative action of both to dispose of or to incumber the same or any interest therein. In procuring the aforesaid judgment both did not act. It was the act of the wife alone without the consent of her husband. And hence it would seem that this action on the part of one alone, and the non-action or resistance on the part of the other, and the resulting judgment, could not amount to or constitute a lien or an incumbrance upon the property. It will certainly not be claimed that merely suffering a lien to be procured upon the property would work a forfeiture of all interest under the deed; for if so, then the property must necessarily have been forfeited on the very first moment of the first day of the next November after the deed was executed, for on that day taxes became due upon the property, and became a lien and an incumbrance thereon, and these taxes could not possibly have been paid or avoided prior to their becoming a lien and an incumbrance. But as before stated, Eugene F. Shinn and Ella Shinn owned their interests in the property by entireties, and not as joint tenants or tenants in common. Neither owned a separate interest in the property, but each owned the entire property, and surely Ella Shinn in procuring a judgment in her own favor could not create a lien or an incumbrance upon and against her own property. And she certainly would not cause an execution to be issued to sell her own property. At common law the husband had the right to the use and control of all his wife’s property, including that which she held as a tenant by the entirety with her husband as well as that which she held in her own right and by a separate title, and that which she held as a tenant in common or joint tenant with her husband or others. But our statutes have materially changed this rule of the common-law. Under our statutes the wife now has the same right to the use and control of all her own property as her husband has to the use and control of his. She now has the same right to the use and control of the interest in property which she holds with her husband or others as tenants in common, or as joint tenants, or as tenants by the entirety, as her husband or any one of the other tenants has to the use and control of a like interest in the property. The statutes do not attempt to abolish or affect tenancies by the entirety any more than they attempt to abolish or affect tenancies in common. Both kinds of tenancies still exist, and both are alike affected as between a husband and wife by the foregoing statutes. But as the wife now has the same right to the use and control of property held by herself and husband together as tenants by the entirety as he has, and as she has the right as well as he to the entire use and control of such property, the selling on execution or the otherwise disposing of the husband’s interest in such property without her consent could not divest the wife of her right to the possession of the entire property, nor of her right to the use and control of the same. In this connection see Davis v. Clark, 26 Ind. 424, and the several cases hereafter cited.

As long as the wife lives the property cannot be legally seized or sold on execution for the husband’s debts; nor could the purchaser, if the property should be sold, take the possession of it, for the wife has the exclusive right to the possession thereof, and to the use and control of the same, except as against her husband alone, who has a like right to the possession, and to the use and control of the same. But it may be claimed that as the husband has an equal interest with his wife in the property, and that as he might possibly outlive his wife and become the sole owner, the judgment should be considered as attaching to that possible contingent interest, and constituting a lien or incumbrance thereon. But this cannot be true, as will be seen from an inspection of the following authorities: Davis v. Clark, 26 Ind. 424; Chandler v. Cheney, 37 id. 391, 414; Patton v. Rankin, 68 id. 245; Thomas v. DeBaum, 14 N. J. Ch. (1 McCarter), 37, 40; Jackson v. McConnell, 19 Wend. 175, 178; McCurdy v. Canning, 64 Pa. St. 39; Vinton v. Beamer, 55 Mich. 559; same case, 22 N.W. Rep. 40. If in the present case the wife should live for more than ten years from April 17, 1882, the time for all forfeiture under the deed would then have passed, and no incumbrance could then produce any possible forfeiture under the deed, and certainly while she lives no lien can attach to the property, for the property is already hers, and by the entirety; or if she should outlive her husband, he could never have any interest in the property with respect to which the judgment could be enforced. And according to all the life-expectancy tables, a woman at any age up to 67 is likely to live more than ten years, and if she is not more than 35 years of age she is likely to live more than three times ten years longer. And according to all the life-expectancy tables, the tables of mortality and annuity tables which indicate the expectancy of life for males and females separately, the expectancy of life for a woman of any age is greater than the expectancy of life for a man of the same age and health. See American Almanac, any volume from 1879 up to the present time; Johnson’s Cyclopaedia, vol. 4, pai’t 2, appendix, p. 1726; Chambers’s Encyclopaedia, vol. 6, p576, Table of Mortality; Encyclopaedia Britannica, vol. 2, p. 89, table 5; Encyclopaedia Dictionary, title, Annuity. See also Report of Tenth U. S. Census, 1880, concerning mortality and vital statistics, vol. 12, part 2, p. 773, et seq.; otherwise vol. 13, part 12, of the House Miscellaneous Documents, same pages. A woman’s expectancy of life at the following'ages is as follows: At 18 years of age, 41.67 years more, or 59.67, years in all; at 20 years of age, 40.29 years more, or 60.29 years in all; at 25 years of age, 37.04 years more, or 62.04 years in all; at 30 years of age, 33.81 years more, or 63.81 years in all; at 35 years of age, 30.59 years more, or 65.59 years in all; at 40 years of age, 27.34 years more, or 67.34 years in all. A man’s expectancy of life at any of the foregoing ages, and indeed at any age, is not quite so great as that of a woman at a corresponding age. It will be seen that the chances that' any young woman may die within ten years from any given time are very small, and the chances always are that a wife will outlive her husband unless she is older or in poorer health than he is. It will therefore be seen that there are difficulties in the way of enforcing a supposed lien like the present; and a lien that can never be enforced is no lien at all.

But we have not yet mentioned all the difficulties. A judgment lien operates only to prevent the judgment debtor from disposing of or incumbering his property so that the judgment cannot be enforced as against the property, and to prevent subsequent lien-holders from taking the property in enforcing their liens. Now as the property is held in entirety by the wife as well as by the husband, he could not and cannot alone dispose of it or incumber the same, even if the supposed lien should have no existence. Hence there is no room in this respect within which the lien could operate; also, as the property is held in entirety by both the husband and wife there is no separate estate or interest in either which could be levied upon, and unless the property is levied upon within one year after the judgment is rendered, the lien ceases to operate or to have force as against all other judgment creditors. (Civil Code, § 468.) Hence in this respect also there has never been a time and never will be a time when the present supposed lien could operate. If the husband should die first, the wife would take all the property without regard to the judgment or the supposed lien, hence in that case also there would be no room within which the lien could operate.

We have already considered the possible contingency of the wife dying first, and found that there was no sufficient room during her lifetime within which the lien could operate. And as she is still alive and the lien has not yet operated, there has not yet'been any incumbrance, nor any forfeiture. And the husband’s possible contingency of at some time having a sole and separate estate would be too uncertain and remote to constitute the basis for a present or existing judgment lien or for a present levy of "an execution. Upon this question see Davis v. Clark, 26 Ind. 424, 430, and upon the general question of subjecting property held by a husband and wife as tenants by the entirety to the payment of the husband’s debts; see the authorities heretofore cited. In the American and English Encyclopaedia of Law, volume 7, page 127, it is said that “as a general rule, only such property as the owner or debtor himself might sell can be taken on execution against him;” and on the same page in a note it is said that “a contingent interest not yet acquired is not subject to execution.”

We do not think that the aforesaid judgment is any incumbrance upon the property in question, and therefore the judgment of the court below in this case will be affirmed.

Johnston, J., concurring.