application to property situated outside of the state. Davis v. Williams, 73 Miss. 708 (19 So. Rep. 352.) A deed directly by a wife to her husband is valid. Despain v. Wagner, 163 Ill. 598 (45 N. E. Rep. 129). Construing and applying N. C. Act. 1715, ch. 28, providing that a conveyance of a wife's land can only be made by deed jointly executed by husband and wife, accompanied by a private examination of the wife, it is held that the separate deed of a wife of her land to her husband is void, though her privy examination be taken. Griffin v. Griffin, Tenn. (37 S. W. Rep. 710).

Sec. 388. Deed to husband and wife-Estate conveyed. A deed to husband and wife may make them tenants in common, apt words being used. Fulper v. Fulper, 54 N. J. Eq 431 (34 Atl. Rep. 1063; 55 Am. St. Rep. 590; 32L. R. A. 701). In Maine it is held that the rule of estates by entireties was abrogated by the married woman's statute of 1844 (ch. 117), and a devise to husband and wife "in equal shares and propor tions, and so to their respective heirs and assigns forever" makes them tenants in common. Appeal of Robinson, 88 Me. 17 (33 Atl. Rep. 652; 30 L. R. A. 331; 51 Am. St. Rep. 367). See Vol. I, § 239. Every interest in real estate granted or devised to two or more persons, in their own right, shall be a tenancy in common, unless expressly declared in the grant or devise to be otherwise." Utah Rev. Stat. (1898), § 1973.

66

Where a married

Sec. 389. Estates by entireties. woman has full power to convey her separate property it is held that she may mortgage her interest in an estate by entirety, subject to the husband's right of survivorship. Branch v. Polk, 61 Ark. 338 (33 S. W. Rep. 424; 54 Am. St. Rep. 266; 30 L.R.A. 324). This case follows and approves the principle laid down in the case of Hiles v. Fisher, 144 N. Y. 306 (reported in Vol. IV, §§ 361-365; 39 N. E. Rep. 337). For extensive compilation of authority upon the creation and nature of an estate by entireties, see Tindell v. Tindell, Tenn. (37 S. W. Rep. 1105). wife own an estate by entireties, they can be divested of such estate, and become tenants in common, only by executing a

Where a husband and

regular conveyance, or by a contract legally entered into between them; and a provision in the wife's will that she owns such an estate as a tenant in common with her husband to whom she devises her interest for life, to go to another upon his death, is not such a contract or conveyance as will convert an estate held by entireties into an estate in common, although the husband consents to such will. Wilson v. Johnson, 4 Kan. App. 747 (46 Pac. Rep. 833). It is held in New York following Hiles v. Fisher (reported in Vol. IV, §§ 361-365), that a husband and wife are tenants in common as to the use and possession of land held by them by entireties, and a notice of condemnation proceedings affecting such land given to the husband alone does not bind the wife, and she may enjoin the taking of the land under such proceedings. Grosser v. City of Rochester, 148 N. Y. 235 (42 N. E. Rep. 672).

Sec. 390. Inchoate interests. In Kansas, it is held by a divided court that lands purchased by an intending donor the title of which he holds temporarily until the gift can be executed are subject to the inchoate rights of his wife, given by General Statutes 1889, par. 2599. Flanigan v. Waters, 57 Kan. 18 (45 Pac. Rep. 56). Ind. Rev. Stat. 1894, § 2669, providing that "in all cases of judicial sales of real property which any married woman has an inchoate interest by virtue of her marriage, where the inchoate interest is not directed by the judgment to be sold or barred by virtue of such sale, such interest shall become absolute, and vest in the wife in the same manner and to the same extent as such inchoate interest of a married woman now becomes absolute upon the death of her husband, whenever, by virtue of said sale, the legal title of the husband in and to such real property shall become absolute and vested in the purchaser thereof, his heirs and assigns, subject to the provisions of this act, and not otherwise," does not apply where the husband's only title to the land sold is a sheriff's deed issued in pursuance of a sale on a lien expressly decreed to be junior to the one under which the judicial sale in question was made. Vandevender v. Moore, 146 Ind. 44 (44 N. E. Rep. 3). In Arkansas it is held that a widow's dower in the realty of her deceased husband before it is assigned to her

as the statute directs, is a mere thing in action that cannot be the subject of a conveyance by her to a stranger so as to confer on him any rights that he can enforce in a court of law; but a court of equity will uphold such conveyances. Weaver v. Rush, 62 Ark. 51 (34 S. W. Rep. 256).

Sec. 391. Effect of divorce on real property rights. A divorced wife has no homestead rights unless they be preserved in the decree of divorce. Brady v. Kreuger, 8 S. Dak. 464 (66 N. W. Rep. 1083; 59 Am. St. Rep. 771); Skinner v. Walker, 98 Ky. 729 (34 S. W. Rep. 233). Tex. Rev. Stat. 1895, Art. 2980, authorizing a court upon a decree of divorce to "order a division of the estate of the parties" does not authorize it to set apart to the divorced wife, who has no family, homestead lands so that the same will be exempt from sale on judgments subsequently rendered against her; nor does the statute (Tex. Const., Art. 16, § 52) regulating the disposition of the homestead upon the death of the husband or wife apply in case of divorce. Bahn v. Starke, 89 Tex. 203 (34 S. W. Rep. 103; 59 Am. St. Rep. 40). Under Ind. Rev. Stat. 1894, § 1061, providing that "a divorce decreed in any other state, by a court having jurisdiction thereof, shall have full effect in this state," it is held that a decree of divorce granted in another state upon constructive service, no stipulation as to the property rights of the parties being made, has the same effect upon the property rights of the parties in Indiana as if rendered there. Hilbish v. Hattle, 145 Ind. 59 (44 N. E. Rep. 20). Ind. Rev. Stat. 1894, § 1055, providing that "a divorce granted for misconduct of the husband, shall entitle the wife to the same rights as far as her real estate is concerned that she would have been entitled to by his death," has reference to the separate real estate of the wife and not to her husband's real estate; and a wife who has obtained a divorce on account of the fault of her husband does not, at his death, become his "widow," or "surviving wife" so as to claim the rights of such under the statute of descent. Ind. Rev. Stat. 1894, §§ 2640, 2652, construed and applied. Fletcher v. Monroe, 145 Ind. 56 (43 N. E. Rep. 1053). Where a judgment in divorce proceedings vests the title to certain lands in the husband absolutely and directs

him to pay a certain sum to the wife upon her execution of a quitclaim deed to him, the absoluteness of his title does not depend upon his payment of such sum; and the court has jurisdiction to issue a writ of assistance to put the husband in possession. Kirsch v. Kirsch, 113 Cal. 56 (45 Pac. Rep. 164). Mill. & V. Tenn. Code, § 3329, applied-husband's rights to rents and profits of his wife's land upon dissolution of marriage. Brasfield v. Brasfield, 96 Tenn. 580 (36 S. W. Rep. 384).

Sec. 392.

Divorce proceedings-Alimony. In Kansas it is held that the district court has power to award land as alimony in a divorce proceedings based only on constructive notice to the defendant, where the plaintiff alleges sufficient grounds for divorce and alimony in the petition, and asks to have such land appropriated as alimony, and where the publication notice contains a particular description of the land sought to be appropriated, and the nature of the relief demanded; and lands lying in a county other than where action is brought, if brought within the control of the court by proper averment in a petition and notice, may be awarded as alimony. Wesner v. O'Brien, 56 Kan. 724 (44 Pac. Rep. 1090; 54 Am. St. Rep. 604; 32 L. R. A. 289). Ky. Stat. 1894, § 2123, which provides that no "order for maintenance of children or allotment in favor of the wife shall divest either party of the fee simple title to real estate," does not prevent the enforcement of a judgment for alimony rendered against a husband, by an execution sale of his property. Tyler v. Tyler, 99 Ky. 31 (34 S. W. Rep. 898).

Sec. 393. Miscellaneous notes. Prior to July 24, 1853, in Indiana, the personal property of the wife belonged solely to the husband; if he invested the same in real estate, and took the title in his own name, no trust resulted in favor of the wife. Waymire v. Waymire, 144 Ind. 329 (43 N. E. Rep. 267). Applying Miss. Code, 1871, § 2323, it is held that the title or interest of a wife in lands belonging to her is affected in no way by a conveyance thereof by the husband. See opinion for discussion of ancient common-law rule on this subject. Hill v. Nash, 73 Miss. 849 (19 So. Rep. 707).

IMPROVEMENTS.

EPITOME OF CASES.

Sec. 394. Occupying claimants. The South Dakota statute, Comp. Laws, § 5455, provides that "in an action for the recovery of real property upon which permanent improvements have been made by a defendant or those under whom he claims, holding under color of title adversely to the claim of the plaintiff, in good faith, the value of such improvements must be allowed as a counterclaim by such defendant." Under this statute it is held that one who takes possession of land under a contract of purchase, and a bond for a deed executed by the vendor, does not hold under color of title, nor adversely, but that his position is that of a licensee. Seymour v. Cleveland, 9 S. Dak. 94 (68 N. W. Rep. 171). Ind Rev. Stat. 1894, §§ 1087, 1093, applied-right of holder under color of title to be paid for improvements. Fish v. Blasser, 146 Ind. 186 (45 N. E. Rep. 63).

Sec. 395. Improvements by purchasers and mortgagees. Where a person may have taken actual possession of land in good faith under an imperfect agreement, or under an erroneous construction of the agreement, or where an attempt is made to take such agreement out of the statute of frauds by showing performance or part performance, the court will retain the bill in a proper case, for the purpose of affording the party a reasonable compensation for beneficial and lasting improvements. Duke v. Griffith, 13 Utah 861 (45 Pac. Rep. 276). A vendee, in an action to rescind a contract of sale on account of a mistake of fact, cannot claim an allowance for improvements except to the extent they have increased the value of the land. Conlan v. Sullivan, 110 Cal. 624 (42 Pac. Rep. 1081). Improvements made by one holding under a tax deed will be presumed to have been made in od faith. Fish v. Blasser, 146 Ind. 186 (45 N. E. Rep.