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bate to order a sale of the decedent's lands by the administrator or executor, whenever this is necessary to the full performance of his duties. Thus, if the personal property is not sufficient to satisfy all the debts, the administrator or executor may, under order of the court, make a valid sale of the lands, and the proceeds of sale will constitute in his hands a trust fund out of which the claims of the creditors must be satisfied.
By the early common law, lands were inalienable for any purpose, and consequently they could not be sold to pay the debts of the owner. But as trade and commerce increased, it became necessary that the creditors should be provided with means for satisfying their claims by compulsory process against the debtor's property. In compliance with the popular demand, the statutes merchant and statutes staple were passed, which created in favor of the creditors an estate in the debtor's land, whereby he was enabled to enter into possession and satisfy himself out of the rents and profits. These statutes bave been abolished in England, where they are superseded by the writ of elegit, which bears a close resemblance to the American statutes of execution. In all the American States there are statutes which provide that, when a creditor obtains judgment against his debtor, he may cause a writ of execution to be issued against the property of the debtor, under which the sheriff is authorized to make sale of the real property, and to execute the proper deeds of conveyance. In order to further protect the creditor, it is provided by most of the State statutes that the judgment, when properly docketed, creates a lien upon all the debtor's real property, which attaches to, and binds, the land into whosesoever hands it may come. The judgment lien enables the creditor to sell the land under execution, although it has been conveyed away by the debtor
1 See Tiedeman on Real Prop., $ 756; 3 Washb. on Real Prop. 209.
2 Bla. Com. 161, 162.
to a purchaser for value. It is not necessary to attempt to justify these cases of involuntary alienation. When a judgment for debt is rendered, it determines that one man owes another so much property, expressed and estimated in money, and it is a very natural police regulation to give the property to whom it is due.
The cases are numerous in which the court of chancery has the power to decree a sale and conveyance, and it will be impossible to enumerate them. The more common cases are the decree of sale in the foreclosure of a mortgage, in
, the enforcement of an equitable lien, in an action for specific performance of a contract for the sale of lands, in the confirmation of defective titles, and the sale of equitable estates to satisfy the claims of creditors. In all these cases, originally, the court in its decree ordered the holder of the legal title, or the owner of the land, to make the proper deeds of conveyance, upon pain of being punished for contempt of court. If the individual was obstinate or beyond the jurisdiction of the court, the court was powerless to effect a conveyance.' But now courts of equity generally possess the power to authorize some officer of the court, usually the master, to execute the necessary deeds of conveyance, and such deeds will be as effectual in passing an indefeasible title as the sheriff's deed under execution.
Generally when a title is defective through some informality in the execution of the conveyance, upon a proper case being made out, the court of equity will afford an ample remedy by decreeing a reformation of the instrument. But cases do arise where, through the absence or death of
1 Ryder v. Innerarity, 4 Stew. & P. 14; Mummy o. Johnston, 3 A. K. Marsh. 220; Sheppard v. Commissioners of Ross Co., 7 Obio, 271.
? 3 Washb. on Real Prop. 219; Tiedeman on Real Prop., $ 758.
8 Adams 0. Stevens, 49 Me. 362; Brown v. Lamphear, 35 Vt. 260; Andrews o. Spurr, 8 Allen, 416; Metcalf v. Putnam, 9 Allen, 97; Conedy v. Marcy, 13 Gray, 373; Prescott v. Hawkins, 16 N. H. 122; Caldwell v. Fulton, 31 Pa. St. 484; Keene's Appeal, 64 Pa. St. 274; Mills v. Lockwood, 42 Ill. 111; Gray o. Hornbeck, 31 Mo. 400.
the parties, or through a want of knowledge as to who they are, it is impossible to obtain a reformation in chancery ; and even in cases where the equitable remedy is only troublesome and inconvenient, and the defect is only an informality, which does not go to the essence of the conveyance, and which does not create any doubt as to the intention to make a valid conveyance; the power of the legislature to interfere and cure the defect by special act has been generally sustained by the courts of those States, where special acts are not inhibited by the constitution."
The compulsory partition of a joint estate, by allotment or by sale of the premises and distribution of the proceeds of sale, is another recognized class of involuntary alienations. The co-tenants of a joint estate may make a vol. untary partition by mutual conveyance to each other of their share in different parts of the estate ; that is, by dividing up the estate into several parcels, and making conveyance of one parcel to each, all joining in the deed or deeds, a partition can be made. This was effected merely by the joint exercise of the right of alienation. The consent of all bad to be obtained, for all had to join in the deed of partition. Involuntary partition is quite different. This gives one co-tenant the right to take away the property of another against his will, and compel him to accept in the place of it a different interest in the land, or bis share in the proceeds of sale. At common law, no suit for partition of a joint estate could have been sustained against the will of any one of the co-tenants, except in the case of an estate in coparcenary; and it was not until the reign of Henry VIII. that any legal action was provided for compulsory partition. The distinction, made by the common law
1 See Wilkinson o. Leland, 2 Pet. 627; 8. c. 10 Pet. 294; Watson v. Mercer, 8 Pet. 88; Kearney o. Taylor, 15 How. 494 ; Adams v. Palmer, 51 Me. 494 ; Sohier o. Mass. Gen. Hospital, 3 Cush. 483; Chestnut o. Shane's Lessee, 16 Ohio, 599; Tiedeman on Real Prop., $ 755. Tiedeman on Real Prop., $ 260; 1 Washb. on Real Prop. 676.
in this connection between estates in coparcenary and other joint estates, rests upon the fact that the estate in coparcenary arises by operation of law, by descent to the heirs, without the consent of the co-tenant. It was but reasonable that the common law should provide a means of converting the estate in coparcenary into estates in severalty. The other joint estates, are created by and with the consent of the cotenants, for they are always created by purchase, and they may be presumed to have intended that the estate should ever remain a joint estate, at least as long as all the cotenants do not agree to a partition. But, yielding to the pressure of public opinion, which has always in England and in this country demanded the removal of all restrictions against the free alienation of land, and the regulation of estates in land in such a manner that a change of ownership may take place in the easiest possible manner, statutes were passed in the reign of Henry VIII., and likewise in the different States of the Union, creating a legal action for the compulsory partition in all joint estates except estates in entirety. The right of compulsory partition of all joint estates, as an invariable incident of these estates, except in the case of tenancies in entirety, has come down to us as an inheritance from the mother country, and all joint estates in the United States have been created in actual or implied contemplation of the possibility of a compulsory partition. Consequently no question can arise as to the constitutionality of laws providing for compulsory partition. It would be different if the right of compulsory partition were granted now for the first time, and the statute was made to apply to existing joint estates. So far as it applied to existing joint estates, the law would be unconstitutional, because of its interference with vested rights. But all subsequently created joint estates would take effect
| Tiedeman on Real Prop., S$ 261, 262, 290; 1 Washb. on Real Prop. 651, 676; Williams on Real Prop. 103.
subject to this provision for compulsory partition, and no one's rights are violated. No partition could be made of a tenancy in entirety, principally because a man and his wife could not sue each other. The right of compulsory partition was therefore not an incident of tenancies in entirety.! It has been much mooted, whether tenancies in entirety were not by implication converted into tepancies in common by statutes, which in general terms give to married women, in respect to their property, the rights and powers of single women. Although there are a few cases, in which the courts have held that tenancies in entirety were inferentially abolished, the majority of the cases deny that these statutes have had any effect upon the law of estates in entirety, and that a conveyance of lands to a man and wife makes them tenants in entirety, with the common-law rights and incidents of such tenancies, now, as before the statute. The right to the continued existence of the tenancy in entirety, except when it is destroyed by a voluntary partition, is a vested right which cannot be taken away by subsequent legislation. A statute, which gave to tenants in entirety the right of compulsory partition would be unconstitutional, so far as it was made to apply to existing tenancies in entirety.
A statute of Kentucky authorized the sale of real estate in fee, upon the petition of the life tenant, with or without the consent of the tenant in remainder or reversion. The object of the statute was the same which prompted the
1 Tiedeman on Real Prop., $ 242; 1 Washb, on Real Prop. 673.
? Clark o. Clark, 56 N. H. 105; Cooper o. Cooper, 76 Ill. 57; Hoffman o. Steigers, 28 Iowa, 302.
8 Marburg v. Cole, 49 Md. 402 (33 Am. Rep. 266, Hulett o. Inlow, 57 Ind. 412 (26 Am. Rep. 64); Hemingway v. Scales, 42 Miss. 1 (2 Am. Rep. 886); McCurdy v. Canning, 64 Pa. St. 39; Diver o. Diver, 56 Pa. St. 106; Bennett v. Child, 19 Wis. 365; Fisher o. Provin, 25 Mich. 347; Grover o. Jones, 52 Mo. 68; Robinson v. Eagle, 29 Ark. 202; Goelett v. Gori, 31 Barb. 314; Meeker v. Wright, 75 N. Y. 262. 4 Civil Code, $ 491.