suit was brought, owned the land marked as and be in possession of the real estate along his on the plat, and owned it in October, 1912, the east side of the road. It may be conat which time he put a gate across the north ceded that the contract, as a contract, would end of the road at the plaintiff's southeast not be binding upon Shoop, but it does not corner and another gate across the road at stipulate that Mackey's successor or any one the midway point between that and the pub-else may close the road after Mackey sells lic road, and thus provoked this action of the plaintiff. When defendant first put up the gate across the north end of the road, the plaintiff, it seems, shifted the gate further west, so that it would open on his land, giving him a passageway across the corner of defendant's land into the road. There is some controversy about this incident. The plaintiff claimed that he shifted the gate so that it opened out of his land at the corner, giving him access to the road. Higbee & Mills, of Lancaster, for appellant. P. J. Rieger and Cooley & Murrell, all of Kirksville, for respondent. the land. Porter did not sign it, and it does not purport to bind him to any termination of his long-established right to use the road. He relinquished nothing. The paper is important as showing the recognition by Mackey of Porter's right, which Porter saw proper to enforce by a suit. The fact that Mackey undertook to bind only himself and not his grantees to respect that right would not make it any the less enforceable. There is nothing in the evidence anywhere to show that the relative positions of the parties were changed after that. ment settled the status of the parties at that time, and left the situation exactly as it had been for a generation, so far as the right of Prior to that controversy between Porter and Mackey the evidence is clear as to the continuous use of the road, and when the circumstances changed so as to put out of use WHITE, C. (after stating the facts as that part of it marked b, b, the use of the above). [1] I. The defendant claims that road in question was limited to Porter and there was no continuous user so as to estab- his tenants, and possibly to the occupants of lish a prescriptive right on the part of the the 46-acre tract, who had no other outlet. defendant to the road in question. It was Shoop, himself, who owned the 46-acre tract testified by some of the witnesses that the for 10 years prior to the purchase of the tenants of Porter, who lived on the land be- Mackey land on the west side, used this road, fore plaintiff bought it, and the former own- and had no other outlet until he bought the ers of the 46-acre tract, sometimes put wires Mackey land. After the use of the road had across each end of this road, for the purpose been thus restricted to one or two families of pasturing stock on the grass along the for several years, the controversy arose beroad. In mentioning this, however, the wit-tween Porter and Mackey, and this agree nesses speak of the wires as being only two and three, and being put in there "off and on" during the summer so as to enable the tenants to pasture the road. The evidence does not show that these wires were put up in any permanent fashion or in such way as to obstruct the passage along the road. They probably were loosely fastened, so that a tenant driving along could take them down, pass on through, and fasten them up again. Porter's tenants would put them there for their own accommodation, and to pasture their own cattle on their own road. It was not an interruption of the continuous use of the road as a private way by such tenants. Porter said it never was so closed when he was out there. No witness testified that any one's passage in or out was interfered with at any time by such wires; the user was continuous and uninterrupted by all who wished to use it. [2] II. Appellant makes the further point that, inasmuch as the plaintiff derived his right from Porter, and the defendant derived his right from Mackey, they stand in the shoes of Porter and Mackey, respectively, and, under the agreement between the two, Porter's right under the contract of May 27, 1907, expired when Mackey sold his land to defendant, Shoop, since it only provided that the highway should remain unobstructed as long as the parties of the second part, Peter Mackey and William Mackey, should own Porter was concerned. [3] III. Appellant insists that the use of the road was permissive only in its inception, and that therefore the prescriptive right to have it as a road did not inure to the plaintiff and his grantors. It is true that a prescriptive right to a private road could be acquired only by grant, or by prescription in which, according to a legal fiction, a grant may be presumed. It also is true that a permissive use over the lands of one by another for the purpose of passage will not ripen into a prescriptive right as a general rule. "Permissive use," as the term is applied to the use of a road, has special significance. It is sometimes used interchangeably with the word "license." We are unable to find any decision which defines the expression, "permissive use," but "license" is defined, and license in connection with another's land is a privilege to do some acts or a series of acts on the land of the licensor without the licensee having any permanent interest in it. Bouvier, Law Dic., License; Flaherty v. Nieman, 125 Iowa, 546, 101 N. W. 280. Without attempting a complete definition of the term, we may say for the purpose of this case that permissive use by one of a passageway over the land of another is such use as the owner of the land expressly or tacitly consents to, v. SAXY et al. (No. 18792.) (Supreme Court of Missouri, Division No. 2. 1. with the understanding always between himself and the user that such use is terminable OTTO F. STIFEL'S UNION BREWING CO. at his will or on the completion of the specific act or acts contemplated in the permission. There is no dispute that the owner of the land in this instance knew, through all the years, that the road was used. The rule is, where there has been actual and continuous use for the prescribed period with the knowledge of the owner, that the law raises a presumption of grant, unless the owner can show that the use is merely permissive. Anthony v. Building Co., 188 Mo. loc. cit. 720, 87 S. W. 921. [4] Col. Porter, who owned the land and used the road for many years up to 1909, said that he used it as a right, and did not ask anybody because it seemed to be a public road. He also testified that when the road b, b, along the south of plaintiff's tract was closed up he was asked about it, and said he did not care about it, indicating that, as to that part of the road, his right was recognized and his permission obtained to close it. In fact, from the earliest times the road was always traveled without objection, question, or permission as a matter of right. Further, those who used this road worked it and "kept it in good shape to travel on," the evidence shows. The closing up of the old road b, b, with which it was connected, did not seem to affect their continuous use of a, a, nor did it affect their right to use it. They had all the more need for it because it was the only way out. They used it as a right and not as a revocable privilege. It possessed all the characteristics which are mentioned by this court as necessary to ripen it into a prescriptive right. First, a user for the required period; second, adverse user; third, user under a claim of right; and, fourth, user with a knowledge of the owner. Anthony v. Building Co., supra; Sanford v. Kern, 223 Mo. loc. cit. 628, 630, 122 S. W. 1051. It has been said by the Kansas City Court of Appeals that the use of a road for a quarter of a century with the knowledge and consent of the owners of the servient land, while it would not of itself vest an established and prescriptive easement without evidence to explain how it began, would raise a presumption that it was adverse under a claim of right, and shift the burden to the defendant to show that it was by virtue of some license. Gerstner v. Payne, 160 Mo. App. 289, loc. cit. 296, 142 S. W. 794. The chancellor was sustained by the weight of evidence in the finding of the longcontinued adverse use of this road, and the judgment is affirmed. ROY, C., concurs. PER CURIAM. The foregoing opinion by WHITE, C., is adopted as the opinion of the court. All concur. At common law an estate by the entirety partook in many respects of the nature of the marriage relation, and husband and wife to whom a fee was conveyed took and held it not as separate individuals and by moieties, but as one person, each holding the whole of it. 2. HUSBAND AND WIFE 14(2)-ESTATE BY THE ENTIRETY-SURVIVORSHIP. To an estate by the entirety at common law, the right of survivorship was an incident, differing from the right of survivorship as between the joint tenants, in that the survivor succeeded to the whole by virtue of the grant vesting the entire estate. 3. PARTITION 12(1) ESTATE BY THE EN TIRETY. THE ENTIRETY-DISPOSITION. Neither husband nor wife could dispose of any interest in their estate by the entirety without the assent of the other. 5. DIVORCE 322-EFFECT-ESTATE BY THE ENTIRETY. Upon the divorce of a husband and wife having an estate by the entirety, the parties cease to occupy the relation of tenants by the entirety. 6. HUSBAND AND WIFE 10(1) WIFE'S PROPERTY-HUSBAND'S INTEREST. At common law the wife's money and chattels in possession passed by the marital right to the husband. 7. HUSBAND AND WIFE 9-WIFE'S PROPERTY HUSBAND'S INTEREST. Where the wife at the time of her marriage was seised of an estate of inheritance in land, the husband, at common law, became seised of the freehold jure uxoris, and took the rents and profits during their joint lives, on the theory of the unity of husband and wife. 8. HUSBAND AND WIFE 14(8) MARRIED WOMEN'S ACT-ESTATE BY THE ENTIRETY. §§ 8295-8310) is not intended to weaken or destroy the unity of husband and wife which treats them as equals, but does destroy the unity which considers the wife as merged in the husband, and operates to destroy the jus mariti without affecting in any other way the estates granted to the wife alone, or to the husband and wife as tenants by the entireties. The Married Women's Act (Rev. St. 1909, 9. HUSBAND AND WIFE 14(11)-ESTATE BY THE ENTIRETIES - EXECUTION AGAINST THE HUSBAND-EFFECT. A judgment and execution against a husband alone cannot in any way affect property held by husband and wife by the entireties, or any supposed separate interest of the husband therein, as he has no separate interest. Appeal from St. Louis Circuit Court; William M. Kinsey, Judge. Suit by the Otto F. Stifel's Union Brewing Company against Edward Saxy and wife. Decree for defendants, and plaintiff appeals. Affirmed. The plaintiff seeks herein to subject an alleged interest of defendant Edward Saxy in real estate standing in the name of his wife, the defendant Mary M. Saxy, to the payment of a judgment debt due to it from the husband. There was a decree for defendants, and plaintiff has appealed. On September 3, 1891, certain real estate in St. Louis was conveyed to the defendants, they being then as now husband and wife, and taking said property as tenants by the entireties. In 1905, while the property was so held, the husband became indebted to the plaintiff. Thereafter, through an intermediary, the title was placed in the wife alone; and, still later, the property was sold, and the net proceeds were used in the purchase of the real estate now in controversy. The petition alleges that the title to both of said tracts was so placed in the wife alone in fraud of plaintiff's rights as such creditor, and prays that the husband's interest in the last-mentioned son in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout, et non per my; the consequence of which is that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor." Warvelle on Real Property, § 111, says: "It differs from the estate of joint tenancy in that joint tenants take by moieties and at the of the whole. same time are each seised of an undivided part In the estate by entirety neither tenant is seised of a part, or moiety, but both of them have the entire estate, and as this involves in itself a physical impossibility in the lows that effect can only be given to the grant case of ordinary individuals it necessarily folby regarding both tenants as constituting but one person. But this, in fact, is just what the law does, and as this unity of person is never recognized save in the case of husband and wife, the estate by entirety is confined exclusively to persons within the marriage relation." [2] There was incident to this estate the tract be subjected to the payment of plain- right of survivorship. But such survivorship tiff's judgment. Henry E. Haas and John A. Gilliam, both of St. Louis, for appellant. Jno. B. Dempsey and Rozier G. Meigs, both of St. Louis, for respondents. ROY, C. (after stating the facts as above). I. The question as to whether an execution against the husband alone can reach any interest of any kind in property held by the husband and wife as tenants by the entireties has never been before this court. There are some dicta on the subject, which we will consider after a review of the common law and the decisions of other jurisdictions. The conflicting opinions in the decided cases, and the various reasons given therefor, convince us that no safe conclusion can be reached without a clear perception of what such an estate was at common law, and the effect of the statutes known as the "married women's acts" on such estates. [1] We will first endeavor to ascertain what an estate by the entirety was at common law, leaving out of view the effect on such estate of the power of the husband in the right of the wife (jure uxoris) to dominate her property. The estate was peculiar (Hall v. Stephens, 65 Mo. 670, 27 Am. Rep. 302), and partook, in many respects, of the nature of the marriage relation. Husband and wife took and held it not as separate individuals and by moieties, but as one person, each holding the whole of it. Stewart on Husband and Wife, § 303; 4 Kent, 362. The English Court of Chancery, in Jupp v. Buckwell, L. R. 39 Ch. Div. 148, quotes Coke and Bracton as saying that in such an estate, "vir et uxor sunt quasi unica persona, quia caro una et sanguis unus." That is a plain statement that they are one person because "they are one flesh and one blood." 2 Blackstone, p. 182, says: "And, therefore, if an estate in fee be given to a man and his wife, they are neither properly joint tenants, nor tenants in common, for husband and wife being considered as one per was very different from survivorship in case of joint tenancy. 2 Blackstone, p. 184, speaking of joint tenancy, says: "This right of survivorship is called by our ancient authors the jus accrescendi, because the right upon the death of one joint tenant accumulates and increases to the survivors." Warvelle, supra, speaking of tenancy by the entirety, says (section 111): "Both would therefore be seised of the entire estate; neither could dispose of any part of same without the assent of the other, and upon the death of either the whole estate would remain in the survivor. In this latter respect while the right of survivorship gives to the estate an apparent resemblance to joint tenancy, it yet differs materially from joint tenancy, for the survivor succeeds to the whole not by the right of survivorship simply, as is the case with vested the entire estate in each grantee, or, in joint tenants, but by virtue of the grant which contemplation of law, in one person with a dual body and consciousness." Stewart says (section 306): "On the death of either, the other has the whole estate, continuing alone his or her former holding, and not taking by survivorship in the sense that a surviving joint tenant does." In Garner v. Jones, 52 Mo. 68, it was said: "At common law a conveyance in fee to hus band and wife, of real estate, created a tenancy by the entirety. Being but one person in law, they took the estate as one person; each being the owner of the entire estate, neither of whom had any separate or joint interest but a unity estate continued in the survivor, as it had existor entirety of the whole. So if either died the ed before; an undivided unity or entirety. There was no survivorship as in joint tenancies, but a continuance of the estate in the survivor as it originally stood. The only change by death was in the person, not in the estate. Before death they both constituted one person holding the entire estate, and after the death of either the survivor remained as the only holder of the estate." In Thornton v. Thornton, 3 Rand. (Va.) 179, it was said: "But husband and wife have the whole from the moment of the conveyance to them; and the death of either cannot give the survivor more." See, also, Cole Mfg. Co. v. Collier, 95 Tenn. 115, 31 S. W. 1000, 30 L. R. A. 315, 49 Am. St. Rep. 921; Kunz v. Kurtz, 8 Del. Ch. loc. by him, or taken for his debts, or charged by him with a mechanic's lien." cit. 414, 68 Atl. 450. [3] There could be no partition of such estate. Warvelle on Real Prop. § 111; Stewart on Husband and Wife, § 306; 4 Kent, p. 362; 1 Wash. on Real Prop. § 913; Russell v. Russell, 122 Mo. 235, 26 S. W. 677, 43 Am. St. Rep. 581. [4] Neither could dispose of any interest in the estate without the other. Blackstone's language above cited is: In Hall v. Stephens, 65 Mo. 670, 27 Am. Rep. 302, it was said concerning estates by the entirety: "If, as already seen, the husband and wife became seised in entirety of the undivided oneseventh of the devised premises, the plaintiff is clearly entitled to a corresponding recovery of possession, if the husband had at the time of the sale any interest therein susceptible to execution. The great current of authority af"Neither the husband nor the wife can dis- firms such susceptibility; going only so far as pose of any part without the assent of the oth-this, however, that if the wife survive her huser, but the whole must remain to the survivor." band, she, as such survivor, will be entitled to the whole. This theory, that the husband is Warvelle, as above quoted, says: possessed of a vendible interest, has for its basis "Neither could dispose of any part of the same that the husband, jure mariti is entitled to the without the assent of the other.' possession and usufruct of the wife's real estate during marriage, which right suffers no diminution or abatement by reason of his own in 4 Kent, 362, says: "Neither of them can alien so as to bind the terest in land whereof both his wife and himself other." are jointly seised. Ames v. Norman, 4 Sneed [Tenn.] 692 [70 Am. Dec. 269]; French v. Me[5] Upon being divorced the parties cease han, 56 Pa. 286; Bennett v. Child, 19 Wis. 362 to occupy the relation of tenants by the en-[88 Am. Dec. 692]; Freeman Cot. and Par. §§ tirety. The dissolution of the marriage re- 73, 74; 1 Wash. R. P. (4th Ed.) 672; Bishop, L. M. W. 622; Stoebler v. Knerr, 5 Watts lation dissolves the tenancy by the entirety. [Pa.] 181." Russell v. Russell, 122 Mo. 235, 26 S. W. 677, 43 Am. St. Rep. 581. It will be noticed that such an estate was based on the unity of husband and wife, they being considered in all respects as equals so far as that estate was concerned. [6, 7] We will now consider the estate or right which the husband acquired jure uxoris in the property of the wife, and its effect on the estate by the entirety. 1 Bishop on Laws of Married Women says: "Thus, as we have seen, the wife's money and chattels in possession pass by the marital right to the husband." 2 Kent, 130, says: "If the wife, at the time of the marriage, be seised of an estate of inheritance in land, the husband, upon the marriage, becomes seised of the freehold jure uxoris, and he takes the rents and profits during their joint lives." Platt on Property Rights of Married Women, § 2, says: "The husband was entitled to the use during coverture of all the real estate acquired by the wife before and after marriage." Stewart, in his work above cited (section 146), says: "At common law a husband holds during coverture in right of his wife, she being merged in him, all her lands in possession, and owns the rents and profits thereof absolutely. This is called his freehold estate jure uxoris; it is often said to be an estate for the joint lives of the husband and wife, but this is a mistake as it terminates with absolute divorce. It differs from curtesy initiate in that it is a vested estate in possession, while curtesy initiate is a contingent future estate, it is independent of birth of issue, is held in right of the wife, and is not added to or diminished when curtesy initiate arises." In that case the estate vested prior to the taking effect of the statute which destroyed the right of the husband to the exclusive possession and control of the land. The proposition that the husband's right to control during his life the entire estate held by the entirety was by reason of the jus mariti was announced by the English court in Jupp v. Buckwell, supra, and that case is cited with approval by the Canadian court in Re Wilson and Toronto I. E. Light Co., 20 Ont. Rep. 397. As is said by Stewart, supra, this interest of the husband jure uxoris in the wife's property is different from the curtesy estate. The one is enjoyed during the life of the wife, in her right (or wrong), and terminates with her death; the other is enjoyed in possession only after her death. It, like dower, is held by right of the marriage, but not in right of the spouse. We thus see that it was the mar ital right, and it alone, which gave the husband the power to appropriate absolutely the personal chattels of the wife, and gave him a freehold estate for their joint lives in her lands, including those held by them as tenants by the entireties. Independent of that marital right he had no interest in her property that he could himself dispose of, or that was vendible under an execution against him alone, except his curtesy estate concerning which we will say nothing further. This freehold estate of the husband in the lands of the wife and in estates held by the entireties was based on the idea of the unity of husband and wife, but a very different kind of unity from that The es And in section 306, speaking of estates by unity of equals above described. the entirety, he says: "During coverture, the husband has at common law his estate jure uxoris, with the right to the rents and profits; he holds the property subject to his control, use and possession; only tate of the husband jure uxoris had for its very foundation the idea that husband and wife were one because she was merged in him, and he held the rights of both, and [8] We will now consider the effect of the legislation which is spoken of as the "married women's acts." The verbiage of those acts varies in different states, in Canada and in England. Doubtless the results reached in some of the cases are by reason of some peculiar provision of the statute under consideration. For the purposes of this case we shall treat them all as being the same as ours, unless some reason to the contrary appears. In some states the estate by the entirety has been judicially repudiated. Whittlesey v. Fuller, 11 Conn. 337; Miles v. Fisher, 10 Ohio, 1, 36 Am. Dec. 61; Wilson v. Fleming, 13 Ohio, 68; Kerner v. McDonald, 60 Neb. 663, 84 N. W. 92, 83 Am. St. Rep. 550. In two states there are statutes which destroy the rule that a conveyance of land to husband and wife, of itself and without further provision, creates an estate by the entireties. Bassler v. Rewodlinski, 130 Wis. 26, 109 N. W. 1032, 7 L. R. A. (N. S.) 701; Wilson v. Wilson, 43 Minn. 398, 45 N. W. 710. In the following states it is held that the married women's acts have in effect abolished such estates: Donegan v. Donegan, 103 Ala. 488, 15 South. 823, 49 Am. St. Rep. 53; Robinson's Appeal, 88 Me. 17, 33 Atl. 652, 30 L. R. A. 331, 51 Am. St. Rep. 367; Green v. Cannady, 77 S. C. 193, 57 S. E. 832; also in England, Jupp v. Buckwell, supra; and in Canada, Griffin v. Patterson, 45 U. C. Q. B. 536 (loc. cit. 554). In others it is held that those acts have made husband and wife tenants in common with right of survivorship. Schulz v. Ziegler, 80 N. J. Eq. 199, 83 Atl. 968, 42 L. R. A. (N. S.) 98; Hiles v. Fisher, 144 N. Y. 306, 39 N. E. 337, 30 L. R. A. 305, 43 Am. St. Rep. 762. Some states hold that such acts have had no effect on the husband's right in lands held by the entireties. Pray v. Stebbins, 141 Mass. 219, 4 N. E. 824, 55 Am. Rep. 462; Morrill v. Morrill, 138 Mich. 112, 101 N. W. 209, 110 Am. St. Rep. 306, 4 Ann. Cas. 1100. In two states it is held that those acts have resulted in depriving the husband's creditors of the right to affect the interest of the wife during the existence of the marriage relation; but they intimate that the right of the survivorship of the husband can be sold for his debts. Cole Mfg. Co. v. Collier, 95 Tenn. 115, 31 S. W. 1000, 30 L. R. A. 315, 49 Am. St. Rep. 921; Simpson v. Biffle, 63 Ark. 289, 38 S. W. 345. All those cases which hold that such legislation has destroyed or changed estates by the entireties proceed on the theory that it has destroyed the unity of husband and wife. They overlook the plain fact that such acts are meant to destroy the unity of unequals, the foundation of the jus mariti, and to thereby restore to its full vigor the unity made up of equals, the foundation of the estate by entireties. The doctrine most numerously supported by the decided cases is best expressed in Diver v. Diver, 56 Pa. 106, by Strong, J., who was afterwards a Justice of the Supreme Court of the United States. He there says: "But it is said the act of 1848, by destroying the legal unity of the husband and wife, has converted such an estate into a tenancy in common; that is, that such a deed conveys a different estate from that which the same deed would have created, if made prior to the passage of the act. To this we cannot assent. It statute, imputing to it a purpose never intended. mistakes alike the letter and the spirit of the The design of the Legislature was single. It was not to destroy the oneness of husband and wife, but to protect the wife's property, by removing it from under the dominion of the husband. To effectuate this object, she was enabled to own, use and enjoy her property, if hers before marriage, as fully after marriage as before. And the act declared that if her property accrued to her after marriage, it should be owned, used and enjoyed by her, as her own separate property, exempt from liability for the debts and All this had in engagements of her husband. the force and effect of the instrument by which view the enjoyment of that which is hers, not an estate may be granted to her. It has nothing to do with the nature of the estate. The act does not operate upon rights accruing to her until after they have accrued. It takes such rights of property as it finds them, and regulates the enjoyment; that is, the enjoyment of the estate after it has vested in the wife. And the It is to be as her separate property is enjoyed, mode of authorized enjoyment is significant. as property settled to her separate use. The act therefore no more destroys her union with her husband than does a settlement of property for her separate use. To a certain extent she is enabled, but no more than is necessary, to protect her property after it has been acquired. We have held that she can convey her lands Pettit v. Fretz, 9 Casey [33 Pa.] 118. This is only by joining in a deed with her husband. a clear recognition of the existing unity of the two. It need not be repeated that no greater effect is to be given to the act of 1848 than its language and spirit demand. It is a remedial statute, and we construe it so as to suppress the mischief against which it was aimed, but not as altering the common law any further than is necessary to remove that mischief. hold it as operating upon the deed conveying land to a wife, making such deed assure a different estate from what it would have assured without the act, is to lose sight of the legislative purpose. Were we to do so, it would become in many cases a means of divesting her of her property, instead of an instrument of protection. In the present case, if it has converted tenancy in common, it has taken from her her the estate granted to Diver and his wife into a ownership and enjoyment of the entirety during her husband's life and her right of survivorship to the whole. On this subject the remarks of Chief Justice Lewis in Stuckey v. Keefe's Executors, 2 Casey [26 Pa.] 401, are worthy of attention." To That language is a clear and irrefutable statement of the conclusion that the married women's acts are not intended to weaken or destroy that unity of husband and wife which treats them as equals, but that they do destroy that unity of the two which considers the wife as merged in the husband. In other words, the purpose of such acts is to destroy the jus mariti, without affecting, in any other way, the estates granted to the wife alone, or to the husband and wife as tenants by the entireties. That doctrine has been indorsed in Kunz v. Kurtz, 8 Del. Ch. |