
    Anna Ames vs. Thomas Norman et al.
    
    1. Husband and Wife. Joint estate of in lands. Husband’s power over. May be sold for his debts, and effect of such sale. Survivorship. Where husband and wife are jointly seised of an. estate in lands, the husband during the coverture acquires substantially the same rights and power of disposition of the estate thus held that he does in regard to the wife’s individual estate owned by her at the time of her marriage, and he can, without the concurrence of the wife, charge such estate during the coverture with his debts, or transfer it, or the same may be seized and sold by his creditors. But the assignee of the husband, or purchaser at execution sale, can acquire no other or greater interest than was vested in the husband; and, consequently, he holds in subordination to the contingent right of the wife, who in case she survives the husband becomes absolute owner of the whole estate. So, on the other hand, if the husband survives, the purchaser from him or at execution sale becomes owner in fee of the entire estate.
    2. Same. Same. Effect of divorce a vinculo matrimonii after sale of joint estate. A purchase of an estate held jointly in fee by husband and wife of the husband, or at execution sale for his debts, not made with reference to the contingency of a divorce, is not affected by a subsequent divorce a vinculo. The purchaser in. such case became by his purchase invested with the right of the husband as it existed at the time of the sale — a right to occupy and enjoy the profits of the land as owner during the joint lives of the husband and wife; subject to the contingency, that if the wife, so divorced, survives her former husband, said purchaser’s estate will then terminate; but if the husband survives, said purchaser will become the absolute owner of the whole estate.
    3. Same. Same. Act of 1849, ch. 36. The act of 1849, ch. 36, which protects the lands of the wife from the creditors of the husband, has reference alone to such lands as the husband may hold or claim in right of the wife. It applies only to cases where the fee is in the wife alone, and not to cases where they are jointly seised in fee.
    4. Same. Same. Upon what the tenancy depends. The tenancy by entireties, as of husband and wife jointly seised of an estate in fee in land, is dependent for its existence upon the matrimonial union. So, in a conveyance of land to a man and woman while single, if they afterwards intermarry, as they took originally by moieties, they will continue to hold by moieties after the marriage.
    5. Same. Same. Case in judgment. Practice. Where a husband and his wife were jointly seised in fee of an estate in lands, which was sold at execution sale to pay the husband’s debts, after which the wife filed her bill against the husband and the purchaser at said sale, praying for a divorce a vinculo matrimonii for causes occurring since the marriage, and also praying that the whole of said estate should be decreed to her, it is held that, upon the granting of said divorce, said purchaser’s rights under his purchase are not in any manner affected during the joint lives of said husband and wife; but that if said husband survive the wife, said purchaser takes the absolute estate; and if the wife survives the husband, she will instantly become owner of the entire tract of land; and that her bill, so far as it pertained to her interest in the land, should be dismissed without prejudice to such future, contingent right.
    FROM WILSON.
    This bill was filed in the Chancery Court at Lebanon in April, 1855. The complainant, as the wife of one William Ames, seeks for a divorce from the bonds of matrimony, on the ground of cruel treatment from her said husband; she prays also that a tract of land described in the bill be decreed to her as her absolute estate. It' seems that the complainant and her husband held this land under a joint conveyance in fee to both, made after their marriage. It was levied upon and sold to satisfy an execution against her husband, and was bought hy Alfred Hunt, from whom the defendant Norman redeemed it as a judgment creditor. It is alleged in the hill that the land was bought hy the complainant, and was paid for at her request hy her husband in money derived hy inheritance from her father’s estate; that she requested her husband to have the title made to her, which he promised to do, hut that he had instead thereof caused the title to he made to her jointly with himself. It seems from the proof that the money in question was reduced to possession hy the husband before the payment aforesaid. The defendant William Ames failed to answer the hill; o and at the July Term, 1855, a decree was rendered dissolving the marriage relation between him and the complainant. The answer of the defendant Norman insists that he has a right to at least half of the land, if not hy his redemption from Hunt, yet being a creditor of Ames, he has a right to claim payment of his debt out of one-half of the land, and he prays to have it sold for that purpose. At the January Term, 1856, Chancellor Ridley rendered a decree for the complainant, settling the entire tract of land upon her in her absolute right, free from all debts of her hushand. The defendant Norman appealed. Both the complainant and her late husband were living at the time the opinion of this Court was announced.
    William L. Mahtin, for the complainant :
    
      The complainant insists that she is entitled to the whole of said land for several reasons:
    1. The land was purchased with her money, to which her husband never set up any claim, and the deed shows upon its face that her money paid for it.
    2. The deed having been made to husband and wife, they did not hold as joint tenants nor tenants in common, but by entireties. No alienation by the husband could defeat the right of the wife to the whole, provided she survives him. The conveyance to husband and wife is in legal contemplation a conveyance to but one person. The law is well settled that where land is conveyed to husband and wife, they hold by entireties and not as joint tenants or tenants in common, and that the survivor is entitled to the whole. If this be so, then the husband has no power to convey the land or any portion of it, nor has he any interest which he can sell except with the consent of his wife. If he has no transferable interest, then the purchaser at the sheriff’s sale acquired no title by his purchase, and the sale was therefore void- upon the same ground. If he had no transferable interest, his creditors cannot have the land or any portion of it sold, because he has no divisible interest; and the Court has no power to order the sale of any part, for the title is a unit.
    3. The Court having pronounced a divorce a vinculo, does not sever the interest, but the Court may divest the husband of his indivisible interest, and settle it upon the wife as alimony, particularly in this case, where the land was purchased with the wife’s money.
    4. Defendant Norman has extinguished his debt by bidding it upon the land. This he did at his own risk. See Taul vs. Campbell, 7 Yerg., 332; Shaw et al. vs. Hearsey et al., 5 Mass., 321; 2 Kent., 131, 132.
    R. Hatton, for the defendant:
    It is insisted for complainant that the money which paid Sypert for the land in controversy was derived from her father’s estate, and that this fact constitutes in her an equity to have said land settled upon her, superior to the rights of her husband’s creditors. The Chancellor so decreed ; as we insist, erroneously.
    The fund, before it was invested in the land, had been reduced to possession by the husband of complainant. Sy-pert’s deposition shows that William Ames had used this money in paying for some land he had purchased of Horne. The trade with Horne being cancelled, the money was paid back to William Ames, and by him loaned to Sypert. Was this not a reduction to possession ? If so, did it not become his absolutely ? This cannot be contra-verted. A Court of Chancery could not have taken it from him and settled it upon complainant. Ho case can be found going so far as to decree a provision for the wife after the husband or his assignee had reduced it to possession. Hearin vs. Mtzpatrieh, Meigs’s R., 559, 560; 2 Kent’s Com., (7th ed.,) 123. After the husband has, jure mariti, acquired possession of her personal estate, though it should have been of an equitable character, he will be left in the undisturbed possession of it by the Courts. Howard vs. Moffat, 2 John. Ch. R., 206; My vs. My, 7 Paige, 462; Han Dppes vs. Han Deusen, 4 Paige, 64.
    But it is insisted that complainant kept the money in her possession; had it part of the time, after it was delivered to her by her husband, the defendant William Ames, hid in the ground; and that she loaned it to Sv-pert. Suppose this is true: is not the possession of the wife the possession of her husband ?
    It is said that defendant William Ames promised to have the deed for the land made to her, and that his failure to do so was a fraud upon her rights. She had no legal right to have the title made to her; no equitable right that a Court of Chancery would have recognized. If defendant William, then, made any such promise to her, his violation of the promise may have been bad in morals; yet, as it was a matter purely of discretion with him, it constituted no fraud in law.
    The deed for the land was made to defendant William Ames and to the complainant his wife. The effect of such a deed at common law is well settled. It vests in the husband and wife the title to the land, not as joint tenants, not as tenants in common, but both are seised of the entirety. They do not take by moieties, but as one person. The survivor takes the whole estate. 2 Black. Com., 182; 2 Kent’s Com., 110, (7th ed.;) Preston on Estates, vol. 1, 131. Nor has our statute of 1784, abolishing joint tenancies, altered the common law in reference to the character of the estate held under such a conveyance. In the case of Taul vs. Campbell, 7 Yerg., 319, it is declared that in a conveyance of land in fee to husband and wife, they take the estate by entireties; neither is seised of a moiety, but both, forming one legal person— as a corporation — are seised of the whole, and upon the death of one, the entire estate, which was before joint, is vested solely in the survivor.
    
      Yet, whilst it is admitted that this is the effect of such a deed in Tennessee, we still insist that defendant William Ames had such an interest in this land as could he subjected to the payment of his debts. That his estate in it was a legal estate must be admitted. If, then, it could be subjected to the payment of his debts, it could be done by levy and sale. But could it be so subjected? If his interest could not be, of course hers could not. And if neither, what would be the consequence ? A man and wife might hold vast estates in land, whilst they were largely indebted; and their creditors would be unable to make a cent of their debts. Such a thing would be an anomaly. What interest, then, has the husband which can be made liable for his debts ? In the case of Jackson vs. McConnell, 19 Wend., 175, it is held that the husband, where he and wife hold thus by entirety, though he cannot alien the whole estate, may mortgage his interest, or make a lease in his own name, or join with his wife. In the case of Tcml vs. Campbell, Judge Catron quotes the language of the Supreme Court of Kentucky in the case of Rogers vs. Crider, as follows: “ It is agreed by all the authorities that neither husband nor wife can by common law make any alienation of an estate conveyed to them during coverture, so as to affect the entire right of the other on his or her surviving.” This language evidently conveys the idea that the husband might convey some estate in the land, though as the wife, in the event of her surviving her husband, would be entitled to the whole by survivorship, he could not make such a conveyance as would conflict with this right after his death. What, then, would be the largest estate he could convey? His interest for life, which upon his wife’s death, if he survived her, would become an. absolute estate in tbe land. To this extent we think his estate in the land would be subject to execution. He could not convey away what was not his. What was his, if legal estate, was subject to execution.
    Defendant Hunt’s levy on the land in controversy was then good, at least to the extent of defendant William’s life-estate in the land. To that extent the sale was good to pass the title to the purchaser, and consequently to Norman, who was a judgment creditor of William Ames, and who redeemed from Hunt. This, we insist, would have been the case if there had never been any divorce of complainant from defendant William Ames.
    But by an interlocutory decree in this case, complainant was divorced from defendant William. In this decree nothing is said of alimony. What was the effect of this decree as to the properties of the legal person holding the land ? ' Both are alive. • They are not, however, man and wife, and thereby regarded as one person. They are as separate and distinct individuals as any other two citizens. The title has not been divested out of either by the decree, but is still in both. The fiction that made them hold as one person in legal contemplation has no longer any application to them. They must, then, we insist, as we have no such estates as joint tenancies in Tennessee, the moment the decree divorcing them was pronounced, have held as tenants in common. If so, defendant Norman, being a creditor of defendant William Ames, had a claim on his one-half of the land superior to that of complainant for alimony.
   •McKinney, J.,

delivered the opinion of the Court.

This was a bill for a divorce, and likewise to have the title to a tract of land divested out of the defendant Norman and vested in the complainant. The Chancellor decreed for the complainant, both as against the husband and the defendant Norman. The former acquiesced in the decree of divorce, and the case is brought here by Norman, in whose behalf it is insisted that the decree divesting him of title to the tract of land in the pleadings mentioned is erroneous.

The facts upon which the question arises are these: On the 31st of January, 1835, some time after the marriage of the complainant and the defendant William Ames, one Lawrence Sypert conveyed to them jointly a tract of land situate in Wilson county, containing fifty-four acres, for the consideration, as recited in the deed, of three hundred and thirty-three dollars. This deed of conveyance was properly proved and admitted to registration on the day of its execution. The bill alleges, and the deed recites, and there is proof tending to establish the factj that the purchase - money of said tract of land was part of the distributive portion of the complainant of the estate of her deceased father. On the 14th of May, 1853, said tract of land was sold at execution sale, in satisfaction of a judgment against the defendant William Ames; and the defendant Norman, as a creditor of Ames, afterwards redeemed the land from the purchaser at said sale, previously to the filing of the present bill, and, by virtue of the title thus acquired, he resists the right of the complainant to recover the same. And the question for our determination is, can he successfully do so ? Upon this precise question we have found no direct adjudication, but upon principle we think the question is free from doubt.

The first question to be considered is, had the husband such an interest in tbe land of wbicb be and bis wife were jointly seised, as was subject to seizure and sale on execution by bis creditors? And if so, is tbe interest or title of tbe purchaser at execution sale subject to be divested or in any way affected by a subsequent divorce a vinculo matrimonii granted to tbe wife?

First. By tbe common law, tbe husband and wife are as one person in law: tbe legal existence of tbe wife is incorporated into that of tbe husband; and though, in modern times, exceptions to this doctrine have been introduced, tbe general principle still exists. As one of tbe necessary results of this unity of persons in husband and wife, it has always been held that where an estate is conveyed or devised to them jointly, they do not take in joint tenancy: constituting one legal person, they cannot be vested with separate or separable interests; they are said, therefore, to take by entireties; that is, each of them is seised of tbe whole estate, and neither of a part. And this tenancy may exist whether tbe estate is in fee, for life, for years, or other chattel interest, and whether tbe property be in possession, reversion, or remainder. Co. Lit., 187, b.; 1 Bright’s Husband and Wife, 25. As a consequence peculiar to this tenancy, it is laid down in the books that, during their joint lives, neither can alien the estate thus held without the consent and concurrence of the other, and the survivor takes the whole estate: neither can sever the joint interest: the whole estate belongs to the wife as well as to the husband, and the husband cannot by his own conveyance, the wife not joining therein, divest her estate. 1 G-reenleaf’s Cruise, 865; 2 Bl. Com., 182; 2 Kent’s Com., 132; 4 Kent, 363.

From the peculiarity of this tenancy, the unity and indivisibility of the seisin, there is some confusion in the cases respecting the power of the husband alone to make any conveyance or disposition of the land thus held during their joint lives, and also as to the right of creditors of the husband to subject the same to the satisfaction of the husband’s debts. But upon examination of the authorities, it appears to be settled that during their joint lives the husband may dispose of the estate. He may lease or mortgage it, or it may be seised and sold upon execution for his debts. The doctrine, properly understood, is that the husband, without the wife’s joining him in the conveyance, cannot alien the estate, so as to affect the interest of the wife in case she survives him, as in that event she will be entitled to the whole. 4 Kent’s Com., 363. Nor will the wife’s interest be affected by the attainder of the husband: she will, on surviving, take the whole estate. By the attainder of the husband of felony, the crown will not acquire the fee, but only the pernancy of the profits during the coverture of the wife. Co. Lit., 351.

It seems, therefore, that notwithstanding the peculiar nature of this tenancy, the husband, during the coverture, acquires substantially the same rights, and power of disposition of the estate thus held, that he does in regard to the wife’s individual estate owned by her at the time of her marriage. Consequently it follows that the husband, without the consent or concurrence of the wife, can charge such estate at law with his debts; that he may transfer it; that it may be seized and sold by his creditors. But the assignee of the husband, or purchaser at execution sale, can acquire no other or greater interest than was vested in the husband; and, consequently, he holds in subordination to the contingent right of the wife, who, in case she survives tbe husband, becomes absolute owner of the whole estate. So, on the other hand, if the husband survives, the purchaser from him or at execution sale becomes owner in fee of the entire estate. 1 Dana’s Rep., 242; 15 Wend., 615; 19 Wend., 175.

Secondly. It being established that the interest of the husband in such an estate may be sold on execution for the satisfaction of his debts, we proceed to inquire whether the title of the purchaser is liable to be affected by a divorce a vinculo afterwards granted to the wife.

The decree in this case would seem to take it for granted that, upon a dissolution of the marriage by a divorce at the suit of the wife, the same legal consequences follow, in all respects, as if the marriage had been dis~ solved by the death of the husband. This is a very erroneous assumption, so far at least as relates to the question under consideration.

In England, divorces a vinculo matrimonii are granted only for such causes as, by the ecclesiastical law, are sufficient to avoid the marriage in the spiritual Court; and in such cases the marriage is declared void as having been absolutely unlawful ah initio. 1 Black. Com., 435, 440. In a divorce of this.kind, grounded upon the nullity of the marriage contract, it is said in the books that the husband acquires no right over the wife’s property; though, in some of the authorities, a distinction appears to be taken between the wife’s personal and real property. If the husband, before the divorce, had disposed of the goods of the wife without collusion, it seems she was without remedy; but if the sale or gift were collusive, she might recover the goods so far as they could be traced, and for the rest, as money, etc., she might sue in the spiritual Court. 2 Brigbt’s Husband and Wife, 864, 365. This distinction perhaps arose out of the doctrine maintained by the Courts of common law, that marriages contrary to the ecclesiastical law, though voidable, were not ipso facto void until sentence of nullity were pronounced.

In regard to the wife’s real property, it is settled that if the husband aliened the land of the wife, of which he was seised in right of the wife, and a divorce was after-wards obtained, the wife’s right remained unaffected by the husband’s conveyance: such conveyance did not work a discontinuance of her estate, and, by construction of the statute 32 Henry YIIL, it was held that she might immediately enter.

And, more directly to the point under consideration, it is laid down that if husband and wife purchase an estate jointly and are disseised, and the husband releases, and afterwards they are divorced, the wife shall have the moiety, though before the divorce there were no moieties, for the divorce converts it into moieties. Bright’s Husband and Wife, vol. i., 25, 162, 165; Ibid, vol. ii., 364.

This must necessarily be so; for although, in such case, the relation of husband and wife existed de facto at the time the conveyance was made to them jointly, yet, in contemplation of law, that unity of persons out of which this anomalous tenancy springs, and on which alone it depends as a mere incident, never did exist; and, as some effect must be given to the conveyance, the divorce is regarded as having severed the entirety, and turned it into moieties.

It would seem reasonable that this principle should be held equally applicable to cases where a marriage lawfully contracted is dissolved by a divorce a vinculo for some supervenient cause, as frequently happens under our law, though its application is perhaps not so easy in such cases as where the marriage contract was void ah initio.

If the rights of husband and wife in relation to an estate held by entireties are not altered by the decree declaring the divorce, what becomes of the joint estate? what are their respective rights in the future in regard to it ? They are no longer one legal person: the law itself has made them “twain.” They are no longer capable of-holding by entireties; the relation upon which that tenancy depends has been destroyed: the one legal person has been resolved, by judgment of law, into two distinct, individual persons, having in the future no relations to each other; and with this change of their relations must necessarily follow a corresponding change of the tenancy dependent upon the previous relation. As they cannot longer hold by a joint seisin, they must hold by moieties. The law, in destroying the unity of persons between them, has, by necessary consequence, destroyed the unity of seisin in respect to their joint estate; for independent of the matrimonial union this tenancy cannot exist. And hence it has been held that a conveyance to a man and woman while single, and who afterwards intermarry, as they took originally by moieties, they will continue to hold by moieties after the marriage. 1 Institutes, 187, h.

But if this reasoning be correct, as between the husband and wife, the question remains, what effect has the divorce upon the rights of a third person who has acquired the interest of the husband by purchase at execution sale prior to the divorce ?

We are of opinion that the subsequent divorce has no effect whatever upon the rights of such purchaser. It is true the purchaser at execution sale succeeds merely to the rights of the husband in the estate; that is to say, he acquires no other or different right, either as regards the quantity or quality of estate, than was possessed by the husband; and he takes it subject to all the rights, legal ;or equitable, existing in favor of third persons at the time of the sale. But still, the purchaser is not, to every intent and purpose, placed in' the shoes of the husband. On the contrary, he holds the estate independent of the husband and of his future creditors, and entirely free from all future accidents or contingencies that might, as against the husband,- if the title had remained in him, have directly or indirectly affected the estate.

The purchase, in the present case, was not made in view of the contingency of the wife’s divorce at some future period, and cannot be affected by it.

The defendant by his purchase became invested with the right of the husband as it existed at the time of the sale; that is, a right to occupy and to enjoy the profits of the land as owner during the joint lives of the husband and wife; subject to the contingency that if the complainant survives her former husband, his estate will then terminate; but if the husband survives, he will become absolute owner of the whole estate.

The only remaining inquiry is, whether the act of 1849-50, ch. 36, has any application to this case. And we think it has not. This act only protects from the creditors of the husband the interest in the wife’s lands vested in him jure uxoris. In other words, it is applicable only to cases where the fee is in the wife alone, and not to cases where they are jointly seised in fee.

There is much force in the suggestion that to extend the act by construction to a case like the present would place it in the power of the husband, by resorting to mere forms of conveyancing, to put his entire real estate beyond the reach of his creditors.

No equity can arise in favor of the complainant in this case in consequence of the land having been purchased with money derived from her father’s estate. The money had been previously reduced to possession by the husband, and in law it thereby became his money.

The only claim that can be admitted, on the part of the complainant - in the present case, rests alone upon the doubtful contingency of her' outliving her former husband. In that event, she will instantly become absolute owner of the entire tract of land; in the contrary event, she will have no interest in the land whatever.

The decree will be reversed, and the bill be dismissed as to the defendant Norman; but without prejudice to any future right which by possibility may arise in complainant’s favor.  