Page:The Green Bag (1889–1914), Volume 04.pdf/525

 492

only be determined by the death of himself or wife, and succeed in staying them. It may be the creditors have not been stayed but have gone ahead, sold, and pur chased at sheriff's sale the interest of John Smith in the land. They receive a title for the same from the sheriff, and propose now to bring ejectment or partition proceed ings against Jane Smith. They will utterly fail in their purposes. The courts will not permit them to disturb Jane Smith. The entirety of the title will have to be first deter mined by the death of husband or wife. If the former dies before his wife, the creditors will take nothing and lose all they put in John Smith, while the wife comes into abso lute possession of her entirety of title by sur viving the joint tenancy with her husband. If the slip between the cup and the lip comes in the death of the wife, the hus band's creditors will take the entire property, having purchased and obtained the title from the sheriff for the entire interest of John Smith in the property. Here is a problem for the philosopher. Suppose all titles of real estate of married persons should come to be taken in this way, would it increase or diminish suicide among married people? Or in case of financial trouble of either, would it place a premium on suicide? Or in cases where titles are so held now, is suicide ever resorted to, to help matters with the survivor? Of course John Smith and Jane his wife could have borrowed money on mortgage at any time by putting in pledge or pawn their entire title, so that no matter which died first the lien of the mortgage would remain, to be paid by the survivor. A further com plication about these entireties might be brought about by a contest between credi tors of the husband and wife. The following is a case to the point. The husband in 1877 gave a judgment which was entered of record as a lien against

1 i I !

his interest in the estate. In May, 1882, the wife gave a mortgage upon her 'nterest, in which her husband joined. In June, 1882, the wife died. The property was sold on execu tion process upon the judgment against the husband. It was contended by the holder of the mortgage that the wife with the husband was seized of the whole of the tract described in the mortgage, when they executed the mortgage, and that there were no other mortgages or judgment liens against their joint estate, and they wanted their money. The court reasons out the situation most beautifully, in consequence of which the mortgage debt fails to be paid. It says : —

"The estate of the wife in the premises was not different from the estate of her husband in the same premises. They were husband and wife; the de vise was to them jointly, and they held the land de vised by entireties and not by moieties. The estate of each is exceptional and peculiar. It dies with the owner, and only the survivor has the absolute and unqualified fee simple title in the whole. The estate of the other, though extending to the whole during life, absolutely ceases at death. It was the mortgage given by the wife, and it was the same kind of estate which was bound by the lien of the judgment against the husband. As against the wife, the mortgage was undoubtedly the first and indeed only lieu. As against the husband the judgment was the first lien and the mortgage the second simply because the judgment was ob tained before the mortgage was given. Had the wife survived, the mortgage would certainly have had precedence to the exclusion of the judgment, because the estate bound by the lien of the judg ment was defeasible by the death of the husband before the wife. For the same reason if the hus band survived the wife the estate of the latter was divested, and the mortgage only became operative against the husband because he had joined in its execution. But as to him it was not the first lien, he having become subject to a judgment at a time anterior to the giving of the mortgage."
 * that kind of estate which was bound by the lien of