MYERS V. REED.
401 and another.
1.1"YERS
and another v.
REED
(Oircuit Court, D. Oregon. 1. CONVEYANCE TO HUSBAND AND ·WIFE.
August 8,1883.)
At the common law a conveyance to husband and wife, as such. made thr.m tcnants by entirety, and neither could dispose of the estate thus conveyed without the consent of the other; but upon the death of either, the survivor was the sole owner of it.
2. Prior to June, 1863, if then, or even since, this common-law rule was not changeJ. or modified in Oreson. 3. LAW OF 'fIlE STATE.
The common anJ. statute law of the statc, as expounded by the settled dccission of its highest eourt, furnish the rules that govern the descent and alienation of real property therein, and the eJIect and construction to be given to conveyances thereof.
4.
QUI'J'CI,ADI, OR DEED OF BARGAIN AND SAU,':.
A quitclaim, or deeJ. of bargain ani sale, by an occupant of thc puhlic land in Orugon before he became a settler thureon under the donation act, passeJ. only the possession, and does not a,Icet an after-acquired estate in the same premiscs unrler the donation ac, or otherwise. 5. PURCHASE OF ADVERSE TITLE nY CO-TENANT.
In the case of a co-tenancy arising by de.'cent, devisc, or one'conveyance, the purchase of an adverse title by one of the co-tenants will generally inure to the benefit of the other tenr.nts; 11l\' 'n the c,lse of a mcre tenancy in common, this dcp"nds upon the clrcum,tances of the case, as that Ihe co-tenant used the co-tenancy, or the title, right, or claim under which it exists, or is claimed to exist, to acquire s\lch mlv.:r:;e title.
6.
S.UIE-By TENANT FOR LIFE.
Suit in Equity to Declare a Trnst in Real Property. William B. Gilbert, for Thomas N. St1'OlIg, for defendants. DEADY, J. The plaintiffs, citizen of New York and Connecticut, re. spectively, bring this suit against the defendants, citizens of Oregon, to obtain a conveyance to them of t he undivided four-ninths of the north half of lot 4 in block :;'0 of COllch's addition to Portland, alleging that the same is worth "at least $.1000." 1'he case was heard upon a demurrer to the bill. From th,) \: tter it appears that on February 16, 1860, William Baker, Robel t I' ttock, and Tobias Myers were in the possession of the premis's, cla.lming each to be the owner of an undivided third thereof, under allll by yil'tue of a conveyance from John H. Couch and Caroline, bis wife, in 1850, to George Flanders, and snnary mesne conveyance" thereunder; that at the date of such conveyance said Couch and wife \\ere occupants of a tract of the public land, including the premisps in question; that in 1871 the widow and heirs of said John H. "made final proof of his settlement" Upon said tract as a donation claim, and on November 13, 1871, a patent issned to t1wm for the same, whereby the south half thereof, v.17,no.5-26
FEDEUAL UEPORTER. <. · ' l
including said block 10, was set apart to said Caroline; that on February 16, 1869, said ,Baker conveyed his interest. in the premises to said Pittock, and Tobias Myers, and M. M. Myers, his' wife, and on October 27, 1862, said Pittock conveyed his interest therein to said Myers and wife, who together occupied the same until the death of the former, on March 26, 1863; that said Myers by his last will devised aU his interest in the premises to his wife for her life, and the remainder in equal 1,arts to his three nephews, the plaintiffs, ana George T. Myers; that said M. M. Myers continued in the sole occupation of the premises from the death of her husband until March 13, 1874, when she and said George T. Myers com'eyed their several interests therein to the defendant Simeon G. Reed; that on March 25, 1874, said Caroline Couch quitclaimed the premises to said Reed for the nominal consideration of five dollars, but in fact for the purpose of confirming to said Reed the right claimed undor the prior conveyance of her husband, and, as is aUeged, upon the erroneous impression that said Reed had acquired all right to the premises undel' said deed, and was then the equitable owner of the same; and that in March, 1882, said M. M. Myers died, and the plaintiffs, as the devisees of said Tobias Myers, became anel are entitled to the undivided jour-ninths of the premises. Upon the argument it was insisted by c:unsel for the defendants that the conveyances by Baker and Pittock to Myers and his wife vested in them an estate as tenants by entirety of the undivided two-thirds of the premises, which neither could dispose of without the assent of the other, and which upon the death of Myers remained in his wife absolutelv. 'That such was the legal effect of conveyances at common law there is no doubt; the rule being that as the 11l.;sband and wife are one in law, they cannot take and hold an estate by moieties, and are therofore seized as tenants by 2 Black, 182; 1 Washb. Real .Prop.424; 2 Kent, 132; 1 Bish. Mar. Wom. § 613; Den v. Hardenberg, 18 Amer. Dec. 371, (5 Hall. 42;) Hoffman v. Stigers,28 Iowa, 305. Admitting this proposition, counsel for the defendant contend that the common law has been changed in this state by the operation of certain provisions in the constitution nnd statutes thereof. These are section 5 of article 15 of the constitution, which provides that "the property and pecuniary rights of every married woman,'at the time of marriage, or afterwards acquired by gift, devise, or inluiritance, shall not be subject to the debts or ,contracts ofthe husband; and laws shall be passed for the registration of the wife's 'separate , But this provision has no application topropertyacqllired, not. by the wife but jointly with her husband., And' as erty so acquired was not, at common law,.8 1l bject to the dehtsoi' contracts of the· husband during the life of the,,Wife, or ,8urvived him,jhere,was why it ,shC;>,uld be Xeither does the clause "relating 'to tile registration of ,_ wi{es'sep!; .... ... '. ;
:MYERS
v;
"
ai"ate 'property bear upon the question in any 'VEty; if the , band and wife even took as tenants in ()ommon, her interest would not' be her separate property, unless it was so declal'edin: the conveyance_ or other source of title. · ' , , Sections 9 of the act of January 13,1854, relating to conveyances,: (Or. Laws, 516,) and 1 of the act of October 18; 1862, relating to ' estates, (Id. 589,) are the statutes which are relied on as modifying this common-law rule. But the second oneis too Jate for this case;' it did not take effect until June 1, 1863, and on March 26 of the same year the husband died, leaving the wife the sale owner of the interest' in the property conveyed to them during the marriage. . When this act took effect, Tobias Myers and M. M. Myers were, ' itever, no longer "persons having an undivided interest" in the twothirds of this property conveyed to them by Baker and Pittock. On' the contrary, the husband's interest ceased with his life, and after the wife held the estate alone. Nor do I think the result would have been different if the statute had taken effect during the life of the husband; for although Myers and wife were two natural' per- . sons, yet in contemplation of law they were but one, and on the death of either, that legal personage was represented by the survivor, who' was entitled to hold the estate as befo,):e. In my judgment the legislahll'e had not the power to divest the survivor of this right in the property without her consent; and it would not be presumed that such was the intention in passing the act, so long as it admits of any other construction. Nor does the act of 1854 help the case of the plaintiffs. As the law then stood, the conveyances from Baker and Pittock to Myers and wife were not "made to two or more persons," , but to Tobias and M. M. :Myers as one person,-husband and wife, -which gave them and the survivor of them an estate in the premises. ' , , I do not understand that it is claimed by counsel that any of these provisions of the constitution or statutes, in words or even in legal effect, comprehend this case, but that, taken collectively, they manifest an.intention on the part of the legislature to disregard or do away, with the common-law rule that regarded husband and wife, for this and other purposes, as one person in law, and therefore the' court ought to treat it as superseded or abolished. But in this matter the province of the court is to await the action of the legislature, and not to anticipate or ende,avor, to.outstrip it, in the pursuit of a new notion. See Stubblefield v. Menzies, 8 Sawy. 41; [So C. 11 FED. REP. 268.] , Counsel for the plaintiffs aJso cites cases from five states of the' Union (Hoffmanv. Stigers, 28 Iowa, 302; Meekerv. TV,'if/ht, 76. N. Y. 262; Cooper v. Cooper, 76 IlL 57; Clark v. Clark, 56N. H; 105; Walthall v. Goree, 36 Ala. 728,) in which it is held that this commonlaw rule is.no longer in force there, because iriconsistent with stat-' utes providing; in effect, that ,the property which comes to. amarried: shall; notwithstanding the marriage, be her separate property"
FEDERAL REPORTER.
and not sul...Ject to the control or interference of her husband, or liable for his debts. But whatever may be claimed for the acts of October 21, 1878, (S. L. 94,) and October 21, 1880, (S. L.6,) concerning the status and rights of married women, certainly there was J?-o such statute as these in force in Oregon up to the death of Tobias Myers, when at least Mrs. :Myers' right to the whole of this two-thirds interest in this property became vested beyollllltJgislative control. It also appears that in the case of Noblett v. Beebe the supreme court of this state, at the October term, 1882, held that, under a conycsancc in fee to husband and wife in 1866, they took as tenants by cntirety, and not in common, and that upon the death of one of them the whole estate continued in the Kurvivor. The manuscript opinion that has been furnished me men'.1y states the conclusion of the court, with tbe authorities relied on. it is an authoritative declaration of the law of this state concerning the effect of a conveyance to husband and wife of real property, and, as fluch, is binding upon this court. Xor it be presullH,d, lHl suggested by counsel, to have been made without reference to the provisions of the constitution and statutes of the which nifect the question. In McGooll v. &ales, \) \Vall. 1111'. Justice MILLER in delivering othe opinion ?f the. court, says =' "It is a principle firmly establIshed to l.ldrn:t of dIspute at this day, that to the law of the state wherc IS s!tuated must we look f Jr the rules which govern its dcscent, alIenatIon, and transfer, allJ for the effect and c01lstruction oj cOllrcYtlIlCCS." See, Brinc v. IllS. Co. !l6 U. S. 635. Aud thc settled of tI,(, highest court of the state, as to the law of real property wlw her grounded upou the construction of a statute or the unwrItten law, are also followed by the national as the law of the Jacbon v. Chen', 12 Wheat. 162; HlllvlI/lSOllV.S"l/dlllll,6\\all. , ana lC O.Y. Cl aro, 13 \U 11311 . k '}'I ' ,va. !Ie case of the Towll oj Vel/iN v. 111 'd ./. 9') U S 494 ·t db COtlll"el f tb I ' t·ff t 1 lIr OC., '" ·· , CI e y or e p am lOt lC Cllillrar' f tl . ·t·· t . · J 0 lIS proposl lOn, .IS no In PO int . Tile case t ume d upon tit· ""I·'"t . b the town in aid of a m·1 · t . .' ,I Hil Y of certam onds Issued by the local la; of rea'l an,! J.ll no way involved an inquiry into er J' 1.101" 1'\ tl .. f " f h ceur!, even into the construction ]e OpInIOn 0 a ill.a]Onty 0 t e i!'SllCd hut rather the appl· . t ,the statute under winch the bonds , " of a 11Ona.lide holder of the IC,I lOll of generuIprmclp I es to t hrIghts s e ' ' Th IS conclusion disposes ame. of l' ",. · the property. Their right to plarnhfIs cI.aIm to two-nmths of effect to be gi\Oen to the deerl f.... other two-nmths turns upon the Tobias 1!vers claimed one.tbl· lion Couch to Flanders, under which · fl of the .. . pen d ent of tbe cou,eYances to I . premIses nnor to and mdetock of the other two:thirds l'U Btn and his wife by Baker and Pit, c' 'U'IInCr · h '\"eyance of the whole premises bv IOn WIt the subsequent con· ...- For the defendants it is cuu.· Couch to Reed. -ell e that this first conveyance, as
2,
t;,,'
d
1r
405
against the deed from Mrs. Couch to Reed, is without effect, because at the date of his conveyance he had no interest in the premises, and never afterwards acquired any; that block 10 is a part of Mrs. Couch's half of the Couch donation; and that her deed to Reed gave him the legal title to the whole of the premises in question. Substantially, this proposition is admitted by counsel for plaintiff; but he contends, further, that Reed being a co-tenant with the plaintiffs at the tim8 he took the conveyance from Mrs. Couch, he will be held in equity to have acquired their devisor's third in trust for them. From the uncertainty of the allegations in the bill concerning the nature and date of this conveyance by Couch to Flanders, it is not readily seen what is admitted in this respect by the demurrer. The bill alleges that a tract of the public land, including block 10, was laid off in blocks and lots by Couch and wife prior to 1850, and by them conveyed to Flanders on the day of , 185-. Now, if this means anything as to time, it means that the conveyance was made some time in the "fifties, "-between 1850 and 1860,-and, under the well-known rule that an uncertain or ambiguous allegation must be construed against the pleader, it must be taken to mean 1850. And as it does not appear whether it was before or after September 27, 1850,-the date of the donation act,-it must for the same reason be taken to signify that the conveyance was made in the year 1850, but prior to September 27th. Besides, as it is not alleged that there were any covenants in the conveyance, it must be taken for granted that it was a mere deed of quitclaim, or bargain and sale, the only effect of which was to pass to the grantee therein the right of possession,-the only right which the grantors then had any claim to. Lowllsdale v. Portland, 1 Deady, 7, 10, 43; Chapman v. ScllOul-dist. Id. 149; Fields v. Squires, Id. 379. Afterwards, it appears that Couch became a settler under the donation act on 640 acres of the public land, including the tract quitclaimed to Flanders, in pursuance of which 1\1rs. Couch, as his wife, received from the United States a grant of one-half thereof, including the premises in controversy, which she afterwards conveyed to Reed. No one else ever appears to have had any legal or equitable interest in the premises-the Myers baving nothing but the bare possession under conveyances from persons wbo had no title or right to the land. Furthermore, it is a fact so well known in the history of Portland that I am inclined to think the court may take judicial notice of it, particularly as it is not di'lputed by couDsel that Capt. Couch's family did not remove from the east to Portland until 1852, and therefore it is not a fact that she was a party to the conveyance to Flanders. But be this as it may, bel' quitclaim deed, made prior to the passage of the donation act, does not affect the subsequent grant of the same premises to bel' by the United States. Lowllsdale v. Portlalld, 1 Deady, 15, 47; Chapma1l v. ScllOol-dist. Id. 149; McCraekin
v: Wright,' :i4Jo11ns:i93; Hardenv. Cullins; 8 Nev. 51; Gee Moore,14 Cal: 472; Quivey vi Baker, 37 Cal. 470. 'And, if she afterJ; wards chose for any reason, as out of any regard for her husband's' conveyance of 1850, to convey the property to Reed, the plaintiffs had i no right to complain of her action. She was under no legal obliga-, tion to convey it to either of them, and might have disposed of it to a, third person. But is Reed, under the circumstances, under any obligation to the plaintiffs to convey them the two-ninths interest which they claimed' under this conveyance from Couch? The rule is admitted that if a co-tenant, and particularly a joint tenant, by descent, devise, or the, same conveyance, purchase a title adverse or paramount to the one' under which such tenant holds or claims,it will inure to the benefit of his co-tenants according to their respective interests in the com-: mon property. Van Horne v. Fonda, 5 Johns. Ch. 407; Rothwell v.: Dewees, 2 Black, 617,; Wrightv.Sperry, 21 Wis.341; Frentzv.Klotsch, 28 Wis. 317; Freem.Co-tenancy, § 154; Flag v. Mann, 2 Sumn. 520. But the application of this rule to mere tenants in common is not general, and deperds on the circumstances of the case. Their only unity is possession, and the relation between them is necessarily less intimate than that of joint tenants; Their interests, though held under the same ultimate title, may accrue at olifferent times by dif-, ferent means and from different persons. Under such circumstances, either of the tenants, provided he does not take advantage of his cotenants, and particularly if they are not in possession, may acquire for himself an ontstanding or paramonnt title to the premises. But it is said (Freem. Co-tenancy, § 155) that when a tenant in common makes use of the co-tenancy, or title, right, or claim under which it exists or is claimed to exist, to acquire such outstanding title, that upon this ground alone he will be held to have acquired it in trust for his co-tenants; and this proposition appears to me both reasonable and just. Now, according to the allegations of the bill, this is what occurred in this case. Reed obtained the legal title from Mrs. Couch, and she conveyed it to him, not for a valuable consideratiun, but in consideration of the prior deed of her husband, under which he and the plaintiffs then claimed the premises. And upon this ground the plaintiffs insist that Reed acquired two-ninths of the estate of Mrs. Couch in trust for them. But upon reflection it does not appear that the parties were tenants in common when Reed obtained the conveyance from Mrs. Couch. Under the deed from Couch, and as between themselves, Reed was tenant in fee of an undi.vIded seven-ninths of the property, and tenant, for the life of Mrs. Myers, of the other two-ninths of the same, while the plaintiffs were the tenants in remainder of said two-ninths. They were not in possession or entitled to be during the contimiance of such life estate. Upon this vie,,: of the case; this was nota purchase of an adverse title by one of several -tenants in commou,. - And still, uuder: the cirqum·,
D ·.
stances, it may be' that the death of Mrs. ,Myers, and as soon as the parties became ,tenants ,in ,common, that the plaintiffs were entitled to claim the benefit of this purchase from,Mrs. Couch. The trust would arise and might beenforced as soon as the relation of cotenant was established by the termination of the estate for the life of Mrs. Myers. But, be this as it may, I find that the law regards the purchase of an incumbrance or outstanding title by the tenant for life as being made for the joint benefit of him'lelf and the remainclerman or reversioner, and that he cannot acquire it for his exclusive benefit. LJa/!iess Vo l11ycrs, 13 B. Mon. 513; Varney v. Stevens, 22 Me. 330; Perry, Trusts, §§ 116, 540. ,And in Co'-Lit. §§ 453-267b, it is laid down that "a release of a right made to a particular tenant for life, or in tail, shall aid or benefit him or them in the remainder." , My conclusion upon the whole case is that Reed obtained the con· veyance from Mrs. Couch for the benefit of himself and the plaintiffs, according to their respective interests in the premises under the deed from John H. Couch, and that, therefore, he took two-ninths of the estate derived from 1\lrs. Couch in trust for the plaintiffs, and should convey it to them: The demnrrer is overruled.
Lnm v.
GREEN.
(Uircuit COllrt, D. Colorado. 1.
.Tune 23,1883.)
EQUlTY-BrLL CHAnGING FRAUD-INJURY RESULTING.
The rule in equity is that it is not sutlicient to charge a fraud simply, but the bill must charge also some injury as the rcsult of the fraud: but this rule does not require any considerable and a slight injury as the result of a frauc] will give the party illjured the right to bring his action and cancel the ('(Jntract. SA)IE-FALSE HEPRESENTATlONS AS TO INcmIBRANCE ON REAL ESTATE.
2.
'Where a man represents that a piece of real estate is free antI clear of incumbrance, when in fact, it is to incumbrance, and induces anothcr to take it upon the belief that his repre.scntations are true, there is an injury, and a bill so charging is sufficient on demurrer. SA)IE-ExA)IINATION OF HECORDS.
3.
In such a case th" purchaser has a right to relv upon the representations of the grantor, and is not bound to search the records to find whether they are . true or not. . . '
MCCnARY, J., (orfllly.) This ·is a hill in chancery, filed to cancel and set aside a contract and conveyance whereby the defendant sold 10 the complainant an interest in a mine.. The bill avers that the defendant falsely and fraudulently represented to the complainant .that this pi'operty was free and clear of incutnbrance, and' that he \vas induced by these representations to purchase it, and to pay for it the sum of:$1,500; that he afterwards discovered that the·represen. ." 1 ' . : _:. _ ." '.. .-' ··. .. : .,:. 1 '.' ·