Schafer v. Schafer , 122 Or. 620 ( 1927 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] In Banc.

MODIFIED. This is a suit for divorce. The trial court rendered a decree in favor of plaintiff granting her a divorce from the defendant and also decreed that the plaintiff have care and custody of the two minor children of the parties, Donald Schafer then aged seven and Robert Schafer aged thirteen months, giving the defendant the privilege of visiting the children, and providing that defendant pay the sum of $100 per month for the maintenance of the children until they arrive at the age of eighteen years; when Donald Schafer arrived at that age said sum to be reduced to $50 per month, and that sum to be paid until Robert Schafer reaches the age of eighteen, when the same shall cease.

The decree further provided, to wit:

"And whereas, the plaintiff is the owner of a one-half interest in and to the following described premises, to-wit: Lots 5 and 8 and the E 1/2 of lot 9 in block 9, King's Second Addition to Portland, Multnomah County, Oregon. Whereas, the defendant is the owner of a one-half interest therein; and whereas, this defendant is the owner of an undivided one-third interest in and to the following described real estate, to-wit: the West one-half of lots two (2) and three (3), Block 181, Couch Addition to Portland, Multnomah County, Oregon;

"Now THEREFORE, it is further ORDERED, ADJUDGED AND DECREED, and the plaintiff is hereby declared to be the owner of a two-thirds interest in and to the following described property, to-wit:

"Lots five (5) and eight (8) and the East one-half of Lot nine (9) King's Second Addition to Portland, Multnomah.

"It is further ORDERED, ADJUDGED AND DECREED that the plaintiff be and she is hereby declared to be the owner of a one-ninth (1/9) interest in and to the following described premises:

"The West one-half of Lots two (2) and three (3) in Block 181, Couch Addition to the City of Portland, Oregon, Multnomah County, Oregon;

"It being the intention of the court herein to give to this plaintiff her statutory interest in all of the real estate of the defendant.

"In addition thereto the court decrees that the plaintiff is in her own right by virtue of a deed of conveyance, the owner of a one-half interest in and to the following described premises, to-wit:

"Lots five (5) and eight (8) and the East one-half of lot nine (9) in Block nine (9), King's Second Addition to Portland, Multnomah County, Oregon."

Defendant appeals.

In defendant's reply brief we find it stated, "One question only is presented by this brief. It is this: What power has the court under Section 511, Or. L., to divide an estate by the entirety." It is contended on behalf of the appellant that an estate by the entirety does not come within the provision of Section 511.

In the present case the Schafers owned certain property as tenants by the entirety. The court gave the wife a divorce. By operation of law the divorce decree ended the entirety and transmuted it into a tenancy in common: 2 Schouler on Marriage and Divorce, p. 2074, § 1944. The trial court apparently treating the estate by the entirety as though it were owned by the Schafers as tenants in common, proceeded by the decree to give the wife one third of the defendant's one half of the property which, up to that time, and at that time, and until the decree had been rendered and became operative, had been an estate by the entirety.

In considering this question there are a few settled rules which may be helpful to notice. The husband and wife were considered at common law as one person and a conveyance to them was, in effect, a conveyance to a single person. By a conveyance to them of an estate by the entirety, two real persons took the whole of the estate between them, and each was seized of the whole and not of an undivided portion. When the unity was destroyed by death the survivor took the whole of this estate, because he or she had always been seised of the whole thereof and the other had no interest which was divisible. When the unity is destroyed by decree of divorce leaving both spouses surviving, as stated by former Mr. Justice BEAN in Hayes v. Horton, 46 Or. 597,600 (81 P. 386):

"The only logical conclusion is that they thereafter became tenants in common of the property, because they are two living persons in whom the title rests."

In that case the law is so far declared, and has become settled in this state. It will be noticed that in regard to both spouses it is declared that thereafter, that is, after the divorce, they become tenants in common of the property. They were not tenants in common of the property prior to the rendition of the divorce decree, and only became such tenants after the decree was rendered and became operative.

The courts are not agreed as to the effect of a divorce upon an estate by the entirety, but the question is set at rest in this state: 1 Schouler (6 ed.), § 568.

As stated in 30 C.J., Section 97, page 564:

"An estate by entireties is defined as an estate held by husband and wife by virtue of title acquired by them jointly after marriage. It is a peculiar and anomalous estate. It is asui generis species of tenancy. The essential characteristic of an estate by the entirety is that each spouse is seized of the whole or the entirety and not of a share, moiety, or divisible part. Each is seized per tout et non per my. There is but one estate, and, in contemplation of law, it is held by one person. But while a tenant by the entireties owns the entire estate, yet where it is owned in fee it is not greater in quantity than any other estate in fee. During coverture neither spouse has an estate of inheritance in property held as an estate by the entirety. None of the incidents peculiar to the estate rests upon any ground of public policy."

"The death of one tenant by the entirety terminates the estate, and, by the weight of authority, the same result follows from an absolute divorce." 30 C.J. 567, § 100; 2 Kent, 158.

See 2 Bishop on Marriage Divorce, §§ 1650, 1651; 19 C.J., § 453, p. 182; Stout v. Van Zante, 109 Or. 430 (219 P. 804, 220 P. 414); Chase v. McKinzie, 81 Or. 429 (59 P. 1025);Alles v. Lyon, 216 Pa. 604 (66 A. 81, 9 Ann. Cas. 137, 10 L.R.A. (N.S.) 463, and note); Reed v. Reed, 109 Md. 690 (72 A. 414, 130 Am. St. Rep. 552); Palmer v. Mansfield,222 Mass. 263 (110 N.E. 283, L.R.A. 1916C, 677); Ades v. Caplan,132 Md. 66 (103 A. 94, L.R.A. 1918D, 276). The statute was intended to make an equitable distribution of the property acquired or held during their married life: Allen v. Allen,196 Mich. 292 (162 N.W. 987).

Estate by entirety is dependent for its creation and also for its continuance upon the marital relation of the cotenants. While the tenancy by the entireties continues, no partition can be made, but after the tenancy has been converted into a tenancy in common by a destruction of its peculiar and essential unity of persons it may like other tenancies in common be partitioned. Freeman on Cotenancy and Partition, § 444.

The divorce destroys the unity of husband and wife but the unity of the estate by the entirety is made up of equals as the foundation thereof, and as the husband and wife, as regards the property, stood upon an equality before the rendition of the divorce by operation of the law after the divorce they become tenants in common of the property. Section 511, Or. L., provides as follows:

"Whenever a marriage shall be declared void or dissolved, the party at whose prayer such decree shall be made shall in all cases be entitled to the undivided third part in his or her individual right in fee of the whole of the real estate owned by the other at the time of such decree, in addition to the further decree for maintenance provided for in section 513; and it shall be the duty of the court in all such cases to enter a decree in accordance with this provision."

Under and by virtue of the provisions of this section the court may seize and cut off a third interest in such property as defendant owned at the time of the decree. This power is drawn only from the statute. The statute does not contemplate that the decree shall successfully dissolve the marriage, change the estate from an entirety to tenancy in common and then seize upon one party's share of the tenancy in common, and give a third thereof to the other. The decree has a fixed legal effect upon the estate by the entirety, namely, to transmute it into a tenancy in common. The statute does not give the court power to seize upon the declared legal effect of its decree and mutilate or change that legal effect.

It is apparently true that the legislature did not have estates by the entirety in mind when Section 511, Or. L., was enacted. This appears not only from the language of the section itself but by comparison with provisions made by legislatures in other states to govern the disposition of entireties by divorce decree.

There is found, in effect, among the old rules, which have become axiomatic, that a party must be consistent and not contradictory in the positions which he takes. To quote the language of Lord Kenyon, he must not "blow hot and cold" at the same time. One of the most important applications of the rule is where a party endeavors to establish a right or title in himself, under one provision or implication of a deed or other instrument, by ignoring or contradicting another provision or implication which is destructive or fatally repugnant. According to the reason of the rule, which applies to deeds, a person cannot claim under the instrument without confirming it. He must found his claim on the whole and cannot adopt that feature or operation which makes in his favor and at the same time repudiate or contradict another feature or operation which is adverse to it. Jacobs v. Miller, 50 Mich. 119, 127 (15 N.W. 42), where there is cited a wealth of authorities.

In none of the cases or authorities do we find where a decree of divorce has dealt with an estate by the entirety except by special authority of the statute of the state. In Oregon nothing is provided in regard to entireties in rendering a decree of divorce. In this state there is no discretion as to real property. The court must give the party obtaining the decree a one-third part "in fee," no more, no less, of the real property owned by the party at fault at the time of the decree.

It would seem that the effect of a decree of divorce which by force of law changes an estate by the entirety to a tenancy in common is but the working out of a legal and equitable distribution of property held by the divorced spouses during the existence of their marriage relations. Such, as we understand, is the object and purpose of Section 511, Or. L., the law having determined the matter, and the divorce decree having gone into effect and accomplished the equitable disposition of the real property held by the entirety, there is no room for Section 511, Or. L., to function. In other words, it is not applicable.

We may as well first give one of the spouses one third of the property owned by the other and then the one third of the remaining two thirds in the application of the statute, as to make two divisions of the property in question, in the manner attempted by the decree of the trial court; first, dividing the estate in moieties and then granting the wife one third of the one half belonging to the husband.

Except for the enforcement or correction of such a decree, the entry of the final dercee in a divorce suit a vincule would terminate the jurisdiction of the court over the subject matter of the suit, and over the parties in respect to all matters involved therein: 2 Schouler on Marriage and Divorce, p. 1927, § 1740.

In the present case the trial court first declared, in effect, that the plaintiff and defendant each owned one half of the property held by the entirety. That declaration was a proper announcement of the effect of the decree of divorce and terminated the jurisdiction of the court over the property in question. In effect, the decree first partitioned the property held by the entirety. An estate by the entirety is not subject to partition: 2 Schouler (6 ed.), p. 590, § 568. An equal division between the spouses of an estate by entirety has been held proper: 19 C.J., p. 335, § 776; Jeske v. Jeske, 147 Mich. 367 (110 N.W. 1060).

It should be remembered that the property in question was all acquired by hard work and the practice of economy by the parties during their married life. During their coverture neither spouse had an estate of inheritance in the property held as an estate by entirety: 30 C.J. 565; Roulston v. Hall,66 Ark. 305 (50 S.W. 690, 74 Am. St. Rep. 97).

Riveting our attention to the language of our statute, Section 511, the words "in fee" used therein clearly import that by virtue of a decree in such cases, the title in fee of an undivided one third of the property is to be conveyed. InThompson v. Thompson, 79 Or. 513, 516 (155 P. 1190), this court held that the words "in fee" used in the statute signify an estate of inheritance. Citing Bouvier's Dict. of Law, 766; 3 Words Phrases, p. 2705.

In case of the death of either of the spouses holding an estate by the entirety, the heirs of the deceased would inherit no part of the property held by the entirety, but the whole would belong to the surviving spouse. The court rendering the decree of divorce could not convey to the wife a one-third part of the property "in fee," or an estate of inheritance, for the simple reason that the husband had no estate of inheritance in the property held by the parties by the entirety. A stream cannot rise higher than its source. We quote from the opinion in the case of Roulston v. Hall, 66 Ark. 305, 309 (50 S.W. 690, 74 Am. St. Rep. 97), a case very much in point:

"An estate of inheritance is ``a species of freehold estate in land, otherwise called a "fee" where the tenant is not only entitled to enjoy the land for his own life, but where, after his death, it is cast by the law upon the persons who successfully represent him in perpetuum in right of blood, according to a certain established order of descent.' 1 Steph. Comm. 218; Co. Litt., § 51; Black's Law Dictionary, 436, ``Estate of Inheritance.' From these definitions it seems that an estate held by entirety cannot be an estate of inheritance."

In that state the statute directed that where a divorce was granted to the wife she should be entitled inter alia to a one-third part of all the lands, whereof her husband was seized of an estate of inheritance during the marriage for her life, unless relinquished. The chancery court in a divorce decree awarded the wife one half of property held by her and her husband by the entirety and one third of the other half for her life. The Supreme Court held that the husband "had not an estate of inheritance in these lots" and held the former decree ineffectual.

"No succession tax is due upon an estate held by the entireties upon the death of one tenant under a statute imposing a tax on real estate which passes by the ``law regulating intestate succession.'" Thus read the syllabus which shows the holding inPalmer v. Mansfield, 222 Mass. 263 (110 N.E. 283, L.R.A. 1916C, 677, note, p. 678). In that case it was held:

"Upon the death of the testator no estate in the property in question passed to his widow. It belonged to her from the time when the tenancy by the entirety was created. In the event that she survived her husband, upon his death she took no new title by survivorship, but held under the deed by virtue of which she was originally seized of the whole. 21 Cyc. 1198, 1199; 1 Washb.. Real Prop. (6 ed.), § 912; Enyeart v. Kepler, 118 Ind. 36 (20 N.E. 539, 10 Am. St. Rep. 94)."

When the decree was rendered, the curtain of the marriage relations between the parties was rung down, and neither of the spouses was thereafter entitled to any interest in the property of the other. The court had no authority to decree or change the property rights of one existing after the decree, in favor of the other.

The unity of the persons is then severed and the unity of property rights ceased to exist. The former wife could make no claim as the widow of her former husband and the male spouse would have no curtesy in the land of his former wife.

The decree of the lower court should be modified so as to eliminate the provisions granting the plaintiff a one-third interest in the half of the property held by the parties by the entirety before the divorce.

It is so ordered. In other respects the decree is affirmed.

MODIFIED.

RAND, C.J., and McBRIDE and BROWN, JJ., concur in the foregoing opinion.

ROSSMAN, J., did not sit in the case.

The plaintiff was given a decree of divorce from the defendant, the care and custody of the minor children of plaintiff and defendant aged respectively seven years and thirteen months at the date of the decree, $100 per month alimony, and for the support and maintenance of said children until said children arrive at the age of eighteen years. The decree also provided that the first installment of $100 should be paid by the defendant on July 1, 1924, and a like installment of $100 on the first of each and every month thereafter until said minor children reach the age of eighteen years; that when the older child reaches the age of eighteen years the amount should be reduced to $50 a month and said $50 should be paid until the younger child reaches the age of eighteen years. The decree further gives to the plaintiff a one-third interest in the real property of the defendant. One tract of property involved is described as lots 5 and 8 and the east one half of lot 9 in Block 9, Kings Second Addition in Portland, Multnomah County, Oregon, and was owned by the plaintiff and defendant as tenants by the entirety. The decree declares the plaintiff to be the owner of one half of that tract and awards her one-third interest of the other one-half which the decree declares belongs to the defendant. The defendant appeals from the decree assigning as errors the granting of the divorce to the plaintiff, asserting that the decree of divorce should have been given to the defendant, and also claims that the allowance made to the plaintiff was excessive, unjust and contrary to all the evidence.