From a careful consideration of the testimony and the briefs presented on the appeal, we are of the opinion that the evidence supports the decree rendered by the learned judge of the Circuit Court. It would be of no benefit to the profession or any other person to set out the testimony adduced. The ground alleged in both the complaint and answer is cruel and inhuman treatment. The allegations of plaintiff were sustained. The conduct of the defendant was arbitrary, inconsiderate of the feelings of plaintiff and in two or three instances brutal. Defendant's treatment of the plaintiff doubtless rendered the life of plaintiff miserable and burdensome within the meaning of those terms as used in the statute.
It is not seriously contended that the court erred in giving to the plaintiff the custody of the two children. They are young and need the care of their mother. There was no attempt to prove that the mother was to any degree unfit to have the care and custody of the children. The learned attorney for the defendant at the trial conceded that the plaintiff should have the care of the children even though a divorce was granted to defendant.
It is seriously contended on the part of defendant that inasmuch as he supplied the money for *Page 634 the purchase of the lots above described, and referred to in the testimony as the Irving Apartments, the court erred in finding the plaintiff was owner in her own right of one half thereof. It is urged by the defendant on the appeal that the court should have found that the property belonged to defendant because he furnished all the purchase price which has been paid on the property. Some contention arose as to whether or not the court could in the trial of a suit for divorce inquire into the title of the real property involved therein. Conceding without deciding that the title to the real property could have been properly determined where the same is in dispute, we believe that the decree is correct in that it declares the plaintiff to be the owner of one half thereof. The fact that defendant furnished the purchase price, taking the title in the name of himself and wife, does not destroy plaintiff's interest therein because of the divorce proceedings. If the defendant had given the entire property to his wife he would not be at liberty to reclaim the title or to successfully claim the title because his wife seeks to procure a divorce. The presumption is that he gave the property to her: Hayes v. Horton, 46 Or. 597 (81 P. 386). That presumption has not been overcome. The evidence does not show that plaintiff acquired that title by any unfair means. It was a voluntary gift to her from defendant. Conceding that plaintiff earned no part thereof by her services as wife of the defendant, her title to that property is as secure and valid as though she had paid a valuable consideration therefor: Reed v.Reed, 109 Md. 690 (72 A. 414, 130 Am. St. Rep. 552).
Another very interesting question involves the determination of the effect of a divorce upon interest of *Page 635 the party in fault in property held by husband and wife by the entirety. That question is very ably discussed in the brief of defendant. In his behalf it is urged that a decree of divorce operates upon the title to real property as it stood at the instant the divorce was granted. Up to the time of the decree both parties owned the real property involved. Each owned the whole thereof subject to the right of survivorship. A decree of divorce operates to change the tenancy by entirety to an estate in common: Hayes v. Horton, 46 Or. 597, 600 (81 P. 386).
"Whenever a marriage shall be declared void or dissolved, the party at whose prayer such decree shall be made, shall in all cases be entitled to the undivided third part in his or her individual right in fee of the whole of the real estate owned by the other at the time of such decree, in addition to the further decree for maintenance provided for in Section 513; * *." Or. L., § 511.
It is certain that at the time of the decree in the instant case the defendant was the owner as a tenant by the entirety of the Irving Apartments. His interest in that property was subject to sale and conveyance by him subject to the right of survivorship in his wife: Howell v. Folsom, 38 Or. 184 (63 P. 116, 84 Am. St. Rep. 785). He could also have encumbered his interest in that property: Hayes v. Horton, above. His interest in the property was subject to sale on execution issued upon a judgment against him: Ganoe v. Ohmart, 121 Or. 116 (254 P. 203). The conclusion, therefore, is irresistible that it was the duty of the court under Or. L., Section 511, to award to plaintiff one third of defendant's interest in said Irving Apartments. As was aptly said by Mr. Justice BEAN in Hayes v.Horton, above: *Page 636
"But when the unity is destroyed by a decree of divorce, leaving both spouses surviving, the only logical conclusion is that they thereafter become tenants in common of the property, because there are two living persons in whom the title rests."
Their interest was not only equal but identical prior to the decree. Each was entitled to one half of the issues, profits and rents of the property: Ganoe v. Ohmart, above.
By the terms of that statute the plaintiff was entitled to one-third part in her individual right in fee of the Irving Apartments because the defendant owned that real property at the time the decree was rendered. Defendant does not dispute that he owned that property. On the contrary he insists that he owned it all. By operation of law upon dissolution of the marriage contract the plaintiff and defendant became the owners of the Irving Apartments as tenants in common. Under the statute the plaintiff became, by operation of the decree of divorce, the owner in fee of the one-third interest in the Irving Apartments which belonged to the defendant at the time of the divorce. But one half of that property by virtue of the decree of divorce under said Section 511 became the property of plaintiff. So that the one third of plaintiff's ownership of the Irving Apartments could operate only on the one half owned by the defendant after the decree of divorce. The title to the other half of the Irving Apartments being in the plaintiff was not affected by the one third of the whole as an estate by the entirety because the entire fee in one half thereof was vested in the plaintiff by the dissolution of the marriage contract. Designating the interest of plaintiff in defendant's ownership of the Irving Apartments is therefore a *Page 637 mere matter of computation. "Things equal to the same thing are equal to each other." In no other way can the court obey the mandate of said Section 511.
It was argued that neither plaintiff nor defendant owned the Irving Apartments but the title thereof is vested in the marital status. It is claimed that this marital status is analogous to a corporation. This analogy has been used in some decisions. It is not accurate, however. A stockholder in a corporation cannot mortgage the real property belonging to the corporation. He cannot convey his interest, if any, in the real property belonging to the corporation. The real property belonging to a corporation is not subject to attachment or execution upon a judgment to secure or collect the debts owing by the stockholder. All of these qualities, however, are elements in the estate by the entirety in this jurisdiction: Hayes v. Horton, above;Howell v. Folsom, above; Ganoe v. Ohmart, above.
Different jurisdictions have made such different decisions in applying the law as to estates by the entirety that decisions from other jurisdictions are not helpful in disposing of the instant case. Arkansas and Pennsylvania both hold that a divorce does not sever an estate by the entirety: Roulston v. Hall,66 Ark. 305 (50 S.W. 690, 74 Am. St. Rep. 97); Alles v. Lyon,216 Pa. 604 (66 A. 81, 116 Am. St. Rep. 791, 9 Ann. Cas. 137, 10 L.R.A. (N.S.) 463). Michigan formerly held to the same effect:Appeal of Lewis, 85 Mich. 340 (48 N.W. 580, 24 Am. St. Rep. 94). Under special enactment in the last-named state disposition of an estate by the entirety where the owners are divorced is committed to the sound discretion of the court granting the divorce: *Page 638 Allen v. Allen, 196 Mich. 292 (162 N.W. 987). In Arkansas the effect of a divorce is simply to divide equally between the tenants the issues, profits and rents of the realty owned by the husband and wife as tenants by the entirety. Under the common law the estate by the entirety was deemed one estate only owned between husband and wife as one person and that person was the husband. By virtue of the marriage at common law the husband became seised of all his wife's lands and tenements in his own right. So the estate by the entirety was virtually the husband's sole estate during his life. In Oregon both individuals are recognized as equal owners of the property held by the entirety. Each of the spouses is entitled to one half of the issues, profits and rents of real property held by the entirety: Ganoe v. Ohmart, 121 Or. 116 (254 P. 203). It thus appears very clearly that if the decision of Arkansas should be followed in this state the plaintiff in the instant case would get no part of defendant's interest in a large part of his real property. We are not permitted, as is the court in Michigan, to make an equal and equitable division of the real property between the spouses when a divorce is decreed. The statute requires the court to set apart to the prevailing spouse an undivided one-third interest in fee in all of the real property of the offending spouse: Bamford v.Bamford, 4 Or. 30. The innocent spouse acquires title to one-third interest in the real property of the offending spouse by virtue of the decree. The statute requires the court to enter a decree granting the prevailing party one-third interest in the real property of the other. The statute, however, is not self-operating. Before the court can effect the transfer of one-third interest of the real property belonging *Page 639 to the party at fault the real property must be specifically described so that the same may be identified from the decree. The decree itself is a muniment of title: Gustin v. Gustin,79 Or. 387, 389 (155 P. 370); Perkins v. Perkins, 72 Or. 302,306 (143 P. 995). The court has no discretion in the matter. Awarding one third of the real property of the party at fault to the other party is as much a penalty imposed upon the offending spouse as it is an award to the innocent spouse. The statute prescribes an arbitrary division of the property and this provision is mandatory regardless of whether or not the division seems equitable or just to this court.
In this state the tenancy by the entirety is severed automatically by a decree of divorce. No decree or order on the part of the court is required in order to create the spouses tenants in common as to the real property owned at the time of the decree as tenants by the entirety. The very instant the decree of divorce is granted the spouses become tenants in common as to the property formerly held as tenants by the entirety. There is no lapse of time whatever in the metamorphosis. The decree of the court, however, awarding to the innocent spouse one-third interest in the real property of the offending spouse follows the decree of divorce. The court has no authority to take the land of one spouse and give it to another, except as an incident to the divorce. Until a divorce is granted the court cannot give to one spouse an undivided one-third interest in the real property of the other spouse; consequently when the court decreed in the instant case that the plaintiff should be awarded one-third interest in the real property of the defendant, that award operated on the defendant's interest in the real property as *Page 640 a tenant in common. The defendant owned the property at the time of the decree. The decree of divorce did not add to or take from defendant's interest in that real property. The spouses were equal owners of the estate by the entirety. They are equal owners thereof as tenants in common. The decree of divorce by virtue of the law merely changed the tenancy by which the plaintiff and defendant held title to the real property. It did not change the ownership at all. Hence when the court awarded one third of defendant's real property to plaintiff that part of the decree operated on the estate of the defendant as a tenant in common. The tenancy by the entirety had been severed by the decree of divorce. That very instant the plaintiff and defendant became tenants in common. The decree of divorce itself did not either diminish or increase the quantity or duration of defendant's title to the real property involved.
"It is `whenever a marriage shall be declared dissolved' that the statute operates, — not before, or pendente lite, — and the court then becomes authorized and it is its `duty' `to enter a decree' for the undivided one-third part in fee of the whole of the real estate `owned by the defendant at the time of suchdecree' for a divorce.
"It must be manifest, then, that the primary object of the suit is to affect the marriage relation, — its status, — that it is the specific matter in controversy to be affected, and that it is only when the status is changed by a decree of divorce that the statute operates to divest title `owned' by the defendants, and that it then becomes the duty of the court to enter a decree in accordance with its provisions." Houston v. Timmerman, 17 Or. 499 (21 P. 1037, 11 Am. St. Rep. 84, 4 L.R.A. 716). *Page 641
The court could not give to the innocent spouse an undivided one-third interest in fee unless the offending spouse owned the real property in fee. Whether or not the defendant owned the real property in fee must be determined from his deed. In the instant case there can be no doubt about the deed granting to the plaintiff and defendant an estate in fee. The grantors conveyed to the plaintiff and defendant an estate in fee. They took that entire estate. Whether or not either had an estate of inheritance depended upon survivorship or a severance of the estate by the entirety. When the estate by the entirety was severed by divorce both became tenants in common in fee. Duration or quantity of their estate comes from the deed to them not from the decree. As was said by the Supreme Court of Massachusetts:
"Upon the death of the testator no estate in the property in question passed to his widow. It belonged to her from the time when the tenancy by the entirety was created. In the event that she survived her husband, upon his death she took no new title by survivorship, but held under the deed by virtue of which she wasseized of the whole. 21 Cyc. 1198, 1199; 1 Washb.. Real. Prop. (6 ed.), § 912; Enyeart v. Kepler, 118 Ind. 36 (20 N.E. 539, 10 Am. St. Rep. 94, L.R.A. 1916C, 678)"; Palmer v. Treasurer andReceiver-General, 222 Mass. 263 (110 N.E. 283, L.R.A. 1916C, 678).
Before the court could award to the plaintiff one third of defendant's interest in the real property in said lots 5 and 8 and the east half of Lot 9 in Block 9, King's Addition in Portland, it must have granted to plaintiff a divorce. That very instant they became tenants in common in fee. The court then had no discretion and must have obeyed Section *Page 642 511, Or. L., by awarding to plaintiff one-third interest in fee in defendant's undivided one half in said real property. So that if time is a controlling factor defendant's position cannot be sustained. Before the court could award plaintiff an interest in defendant's real property she must have been decreed a divorce. That instant defendant became an owner of an undivided half of the real property. By virtue of said Section 511 it was the duty of the court to award to plaintiff one third of defendant's undivided half. The expression, in said Section 511, "in fee" is not significant. The intention of the legislature was doubtless to give to the innocent party a third of the whole of the real estate owned by the other at the time of such decree. If the offending spouse owned less than a fee the court could not give the innocent spouse a fee. There are titles in real property which are less than a fee. There are base, conditional and qualified fees: 21 C.J. 922. It cannot be contended that because the court cannot award the innocent spouse a fee simple that the court should not award an undivided third part of whatever interest the offending spouse owns. It is our opinion that the words "in fee" refer to the prevailing party and not to the interest the losing party had in the real property. The legislative intention was to award to the prevailing party a third part of the other's real property whatever interest that may be and without qualification or reservation. It cannot be that the learned justice who wrote the opinion in Hayes v.Horton above, intended that the words "thereafter become tenants in common of the property" should be construed literally where wrested from their context. That case was heard some time after the decree of divorce was rendered. He was *Page 643 not considering the time the decree operated on the real property. Disposition of the real property was not made in the divorce suit. The effect of a divorce on an entirety estate was determined in an independent suit. The essence of the opinion is that the entirety estate is automatically transmitted into an estate in common by a decree of divorce. There can be no interval of time between the decree of divorce and the transmutation of the estate. The statute commands the court to award the prevailing party a third part of the whole of the real property of the other. We cannot obey that mandate and omit the real property held by the parties as tenants by the entirety.
Complaint is also made by the defendant because the court allowed the plaintiff for the maintenance of the minor children of the parties the sum of $100 per month. In view of the fact that substantially all of the property owned by the defendant is his interest in two apartment houses, the allowance for maintenance seems large. Plaintiff was not allowed any alimony other than the $100 per month allowed for the maintenance and education of the children. The result of the decree is that the plaintiff owns two thirds of the Irving Apartments and the defendant one third thereof. The plaintiff owns one ninth of the Arline Apartments and the defendant owns two ninths thereof. Defendant owned one-third interest in the Arline Apartments. In this connection, however, it must be remembered that the plaintiff will not be able, at least for many years, to earn money for her own support and the support of the two minor children. The children are too small to be without the constant care and nurture of their mother. Defendant can devote his entire time to *Page 644 earning money. He is legally bound to support his children. The welfare of the infants in cases of this kind is of first importance. We are therefore constrained not to disturb the allowance made to plaintiff for the support of the children. If future circumstances require modification of the decree in that respect, defendant will always be at liberty to make application to that end.
The decree should be affirmed.
BELT, J., concurs in the foregoing opinion.