
    
       Hopson v. Fowlkes.
    
      (Jackson.
    
    June 19, 1893.)
    1. Estate by the Entirety. Severed by divorce of the owners.
    
    An estate by the entirety is converted into an estate in common by a divorce of the owners.
    Cases cited and approved : Ames ». Norman, 4 Sneed, 682; 80 Ill., 197.
    2. Same. Seven years' adverse possession bars wife's rights.
    
    The wife’s title is barred, if, after the severance ,of an estate by the entirety by a divorce of the owners, the entire interest in the lands is sold under decree for the husband’s debt, and thereafter held adversely by the purchaser for the term of seven years.
    Code construed: 2?3459-3461 (M. &V.); §§2763-2765 (T. &S.).
    FROM DYER.
    Appeal from Chancery Court of Dyer County. H. J. Livingston, Ch.
    J. T. Woodson and Deaper & Parks for Hopson.
    Richardson & Hoover for Fowlkes.
    
      
       The effect of a divorce on a tenancy by the entirety, as decided above, is in accordance with the doctrine declared in Stelz v. Schreek (N. Y.), 13 L. R.. A., 325 and' note. — Reporter.
    
   McAlister, J.

This is an ejectment hill. Complainants seek to recover a tract of land, consisting of eight hundred acres, situated in' Dyer County. Complainant Mary E. Hopson was formerly the wife of one James "Wilson, to whom she was married in 1854, and during said marriage, to wit, on September 8, 1856, one William M. Shipp, the father of Mary E., conveyed to her and her then husband, James Wilson, jointly, the tract of ’ land in controversy. The said James Wilson died in November, 1886, and complainants claim that the legal title to said land is vested in the said Mary E. by right of survivorship, the land having been owned by her and her then husband, James Wilson, by entireties. It should be stated, in this connection, the said Mary E. was divorced from the said. James Wilson on the thirtieth of October, 1860, and on the eighteenth of March, 1861, she intermarried with W. H. Hopson, her present husband.

It further appears that, on January 4, 1860, the land in controversy was attached by creditors of the said James Wilson, and, under proper decrees of the Chancery Court of Dyer ■ County, it was sold to the defendants, Eowlkes and Ledsinger. The defendants, therefore, claim title to said land as purchasers at that judicial sale under the decree of the Chancery Court vesting title in them, and by continuous adverse possession.

.Respondents say they are, and all the time have been since the date of confirmation of sale, the owners in fee of said tract of land, holding and claiming -the same openly against all persons. Respondents plead the statute of limitation of seven years, and they rely on said adverse claim, title, and possession of more than seven years as a complete defense to said action.

The Chancellor pronounced a decree in favor of •defendants, and complainants have appealed.

It appears from the record that the defendant, H. L. Eowlkes, and P. C. Ledsinger, the ancestor of defendant Gilbert Ledsinger, purchased this land at the . sale in the case of Ingram and Allen Walker against James Wilson, and that on the twenty-fourth of January, 1861, a decree was rendered confirming the sale, divesting title, and vesting the same in the purchasers.

It further appears that said purchasers went into immediate possession of the land, inclosed it with fences, erected improvements thereon, and have remained in continuous and adverse possession of the ■same up to the institution of the preseht suit, which was commenced on the twelfth of November, 1888 — about twenty-six years after the defendants purchased -and took possession of said laud.

Under -the operation of the first section of the Act of 1819, Ch. 28 (M. & V., § 3459), an adverse possession of seven years under a deed, grant, or •other title' purporting to convey the fee, not only bars the remedy of the party out of possession, but vests the purchaser with a good and indefeasible title in fee to the land described in his assurance of title. Under the second clause of the first section of said Act (M. & Y., § 3460), it is -provided, viz.: “And, on the other hand, any person, and those claiming under him, neglecting 'for the said term of seven years to avail themselves of the benefit of any title, legal or equitable, by action at law or in equity effectually prosecuted against the pei’son in possession, as in the foregoing section, are forever barred.” The second section of said Act of 1819 (Code, M. & V., § 3461), provides, viz.: “No person, or any one claiming under him, shall have any action, either at law’ or in 'equity, for any lands, tenements, or. hereditaments, but within seven years after the right of action has accrued.” Under the proof in this case, the defendants are protected by each and all of the provisions of the statute, unless it appears that the complainant was laboring under some disability that exempted her from its operation.

It is- insisted on behalf of complainant, Mary E., that the defendants, 'by virtue of their purchase, only acquired such interest as her former husband, James 'Wilson, had in this, land, and that the said James Wilson, having died on the eighth of November, 1886, the said Mary E. then became entitled to the whole estate by right of survivor-ship.

It has already been mentioned that the said Mary E. was divorced from her former husband, the said James Wilson, on the thirtieth of October, 1860, but her counsel insist that this divorce did mot change the nature of her estate in this land, which she still continued to hold by the entirety with the said James Wilson, with the contingent right to the whole estate in the event she survived him. It is insisted that her right of possession, and the devolution of the title did not accrue until the death of the said James Wilson, and that she is not affected by the lapse of time, and the statute of limitations.

It will be remembered that the decree of divorce was pronounced on the thirtieth of October, 1860, which was prior to the purchase by the defendants at the chancery sale, which occurred on the twenty-fourth of January, 1861.

What, then, was the effect of the divorce upon the tenure of complainant’s title to this land?

In . the case of Harrer v. Wallner, 80 Illinois, 197, the Supreme Court of Illinois had occasion to consider the question now before us. Judge Walker, in delivering the opinion of the Court, said: “Row, this estate by the entireties is peculiar. The possession of one is the possession of both. The estate is joint for life, and descends to or vests in the -survivor absolutely, and in fee, and by the destruction of the estate of one it inures to the other. Neither can have partition, nor can either soil the estate so as to affect the rights of the other; and when their rights to the property are invaded, a suit for a recovery for the injury or for the property must be joint, because the property and the right to its enjoyment are joint during coverture,” Then, appellee could not sue for and recover any interest in the land, without joining her husband in the action, until the coverture ceased. It is unlike tenants in common, where either may sue and recover for an injury to the property, and may use the names of his co-tenants.

What effect, .then, did the granting of the divorce have on this estate, or the rights of the parties therein? The relation of husband and wife was thereby terminated, and with it all marital duties. Their interest and duties from thenceforth, as related to each other, were as though they never existed. The estate by the entireties is essentially a joint estate, although it differs in one or two pai’ticulars therefrom.

The power to hold jointly arosé from the fact that they were married when the conveyance was made. Had the marriage not existed, the parties would have taken as tenants in common.

It was that circumstance, 'and that alone, which gave to them the joint life estate and the right to joint possession. When the very thing which, by operation of law, gave them a joint estate was destroyed, by operation of the same law the joint estate ceased, and they then became vested with an estate per my as tenants in common. They, by that act, and operation of law flowing from it, are not jointly entitled to possession, but, the unity of title and the unity of estate no longer existing with the incidental right of joint possession, it inevitably follows that they then became tenants in common. The ‘termination of the marriage relation having wrought a change in the rights of the parties in the estate, the Courts should rather hold that the change is broad enough to convert it into an. estate in common, than to hold that, whatever change was made, it left the right of survivorship.

But, on principle, we are satisfied the decree of divorce had the effect to make them tenants in common, and that appellee thereby becomes entitled to partition.

See also Bishop on Marriage and Divorce, Sec. 716; Freeman on Co-tenancy and Partition, See. 76.

"We are not without authority on the question in this State.

In the case of Ames v. Norman, 4 Sneed, 682, it appeared that Ames and wife were seized of an estate in the land by entireties. Said land was sold at excution sale, in satisfaction of judgment against the husband, and the defendant, Forman, as a creditor of Ames, afterwards redeemed the land from the purchaser at said sale. After For-man’s rights had become vested, the wife of Ames, the original judgment debtor, procured a divorce, and the question was whether the interest or title of the purchaser at execution sale was subject to be divested, or in any way affected, by a subsequent divorce a vinculo matrimonii to the wife It was held that the subsequent divorce had no effect- whatever upon the rights of .such purchaser. It was held that 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 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 case at bar is to be differentiated from the case of Ames v. Norman in this important particular, that in the present case it appears that the wife was divorced prior to the date of defendant’s- purchase and possession. At that date the wife’s status was that of a feme sole, and her estate in this land had, by operation of law, been changed from one by the entirety to a tenancy in common. That Judge McKinney, who delivered the opinion of the Court in Ames v. Norman, recognized this distinction is apparent from the following language. We quote from his opinion, viz.:

“As one of the necessary results of the unity of person 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 seized of the whole estate, and neither of a part. If the rights of husband and wife in relation to an estate held by entireties are not altered by the decree declaring tlie 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 relation to each other; and with this change of their relation must necessarily follow a corresponding change of the tenancy dependent upon the previous relation. As they cannot longer hold by a joint seizin, they must hold by moieties. The law, in destroying the unity of person between them, has, by necessary consequence, destroyed the unity of seizin in respect to their joint estate, for, independent of the matrimonial union, this tenancy eaunot exist.”

We think these principles are conclusive of this case. The decree of divorce, while it severed the unity of person of James and Mary E. Wilson, also severed their unity of estate in this land, making them tenants in common. That decree also removed the disability of Mary E. as a married woman, and left her free to institute proceedings for a partition of this land, or otherwise to assert her rights therein. She neglected to take any steps, and the bar of the statute was complete when the present suit was instituted. It may be remarked, in conclusion, that the whole groundwork of complainant’s bill is based upon the assumption .tliat complainant, Mary E., was not a party to the original attachment suit, and had no notice of those proceedings. This assumption is earnestly controverted by the defendants. "We do not, however, decide that question, as it is wholly immaterial, the title of Mrs. Hopson having been extinguished and her remedy barred by operation of -the statute.'

The decree of the Chancellor is affirmed.  