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Writing Sample
October 14, 2008
Q. In 1990, a husband and wife purchased a piece of
property, but the deed didn’t mention their marital
status, nor, expressly declare a right of survivorship.
When the husband died in 1995, then, did the property
pass to the wife?
A. Had the deed been dated prior to 1983, or, after
2007, the answer would be an unqualified “yes.”
A strong, I would argue compelling, argument can be made
that the 1983 amendment – 1983 Oregon Laws c. 555, s. 1
(Senate Bill 707) – did not change the answer.
----------------------------------------------------
A statute passed in 1854 abolished the right of
survivorship in any devise to “two or more persons”,
except for “executors and trustees, as such”
(emphasis mine) unless expressly declared in the deed.
[Deady, “General Laws of Oregon: 1845-1864,” at 648,
s. 9.]
In 1862, the Legislature abolished, outright, joint
tenancy, declaring that “all persons having an undivided
interest in real property are to be deemed and
considered tenants in common.” [Deady, “General Laws of
Oregon: 1845-1846,” at 718, s. 38)].
In a federal case
applying Oregon law, Judge Deady refused to retreat from
the rule that a conveyance to a husband and wife is to a
single person, and regardless of whether the marital
status is recited in the deed, each takes with a right
of survivorship. [Myers v. Reed, 17 Fed 401, 403
(1883)]. The Oregon Supreme Court endorsed this notion
in 1905. [Oliver v. Wright, 47 Or 322, 326 (1905)], and,
again in 1924 [Twigger v. Twigger, 110 Or 520, 534
(1924), cited with approval, Erickson v. Erickson, 167
Or 1, 20 (1941)].
In 1941, the Oregon Supreme Court taught that the
seemingly contradictory statutory scheme, when
embellished by well-established case law, required,
among other things:
1) That married persons, even if the deed failed to
recite their marital status, were subject to the common
law rule that husband and wife took as joint tenants
with the right of survivorship; and,
2) That unmarried people were subject to the statutory
rule that they took as tenants in common, unless the
deed expressly declared otherwise. [Erickson v.
Erickson, 167 Or 1 (1941)].
In 1953, the entire 1854 statute and part of the 1863
statute were combined as ORS 93.180. [Revisors notes,
Volume I, at 721]. Now the same statute both abolished
joint tenancies and set out a checklist to create them.
In 1965, the Oregon Supreme Court refused to rescue the
legislature from itself, noting the clumsiness of the
statute, but leaving it to the lawmakers to fix.
[Holbrook v. Holbrook, 240 Or 567, 570-71 (1965)].
This clumsy statute continued to vex those not steeped
in case law, however, and the 1983 Legislature
considered SB 707, introduced to make clear that a
properly-drafted conveyance could create the right of
survivorship in unmarried co-tenants. This is the bill
first approved the 1983 Senate.
The House Judiciary Committee, in the mistaken belief
that it was codifying existing case law, added the
phrase “husband and wife, as such” to the bill [1983
Oregon Law c. 555, s. 1], arguably altering the
statute.
The first line of attack is to seek shelter in the
doctrine announced in cases like Erickson [167 Or at 20]
that a husband and wife are one person in the eyes of
the law, and therefore, statutes that speak of plurality
of tenants have no application. Should this argument
prove unavailing, the modern test for statutory
interpretation proves equally as satisfactory.
The modern test:
1) If a “plain reading” of the language at bar and the
context of other provisions of the same or related
statutes, especially the impact of language added or
deleted, [See, Diaz v. Coyle, 152 OrApp 259, 254
(1998)], discloses legislative intent, the exercise
ends;
2) “If, but only if,” this so-called “text and context”
analysis fails to reveal legislative intent, the Court
turns to an examination of the legislative history; and,
3) If the legislative intent still remains unclear,
Courts turn to statutory and common-law rules of
construction. [PGE v. Bureau of Labor and Industries,
317 Or 606, 610, 859 P2d 1143 (1993)].
Application of the PGE test:
a. Text and Context
I’ve not bothered to look at related statutes as it is
outside my job assignment and, besides, a plain reading
of the phrase “husband and wife, as such” seems to end
the debate.
The 2007 Legislature, at the request of the Oregon State
Bar, approved HB 2365, revisiting ORS 93.180. In written
testimony presented to the January 25, 2007, meeting of
the House Judiciary Committee, Greg Nelson, a member of
the Bar’s Real Estate and Land Use Section addressed the
1983 change.
According to Nelson, the phrase “husband and wife, as
such” makes sense when talking about trustees or
executors, since people can be acting as trustees “as
such,” or, not. On the other hand, continued Nelson,
people are either husband and wife or they are not.
“It is a matter of the fact, not what role they are
playing at the time. One cannot shrug off the married
state for the occasion.”
While a 2007 statute has no relevance to a deed drafted
in 1990, the strength of Nelson’s logic as to the
meaninglessness of the phrase “husband and wife, as
such,” does.
The legislature is presumed to know of existing judicial
decisions that have a direct bearing on the enacted
statute, [Weber and Weber, 337 Or 55, 67 (2004)], and
the phrase “husband and wife, as such” does not conflict
with the well-established case law that married persons
take as joint tenants with the right of survivorship,
even if the deed fails to recite their marital status.
b. Legislative History
At the very least, the phrase “husband and wife, as
such” is ambiguous, giving rise to the second prong of
the PGE test, an examination of legislative history.
The bill, as introduced, did not even mention married
grantees, nor, were married persons mentioned in the
Senate Committee. [Written minutes of Senate Committee
on Judiciary – 4/21/83, p. 6; 5/10/83, p 15].
In other words, SB 707, as introduced, was intended to
conform the statutes concerning unmarried persons to the
law announced in cases like Erickson, and, did not
concern itself with married couples. During debate on
the Senate floor, Sen. Hedrickson, made only glancing
reference to married couples. [Senate floor debate –
5/16/83]
The House Committee on Judiciary, likewise, saw SB 707
as simply codifying existing case law. The House
Committee was unaware, however, of the numerous cases
declaring that married couples were seen as one person
in the eyes of the law and took as tenants by the
entirety, regardless of the words used in the deed, and
added a phrase to the statute – “husband and wife, as
such” – intended to require that the marital status be
recited in the deed. [House Committee on Judiciary, at
3, July 6, 1983].
This obvious error by the House Committee, while
technically changing the statute, seems to provide
support for the notion that the 1983 amendment should
not be read as adding new requirements for married
persons.
attachments:
a. 2 pages - 1854 law (Deady)
b. 2 pages - 1862 law (Deady)
c. 2 pages - Myers v. Reed, 17 F 401 (1883)
d. 1 page - Revisers notes, re: ORS 93.180
e. 2 pages - 1953 version of ORS 93.180
f. 1 page - copy of relevant written minutes, Senate
Committee on Judiciary - 4/21/83
g. 2 pages - written testimony of Gretchen Miller
presented to Senate Committee on Judiciary - 4/21/83
h. 1 page - copy of relevant written minutes, Senate
Committee on Judiciary - 5/10/83
i. 4 pages - transcription of relevant Senate floor
debate - 5/16/83
j. 1 page - copy of relevant written minutes, House
Committee on Judiciary, sub-committee # 2 - 6/7/83
k. 2 pages - written testimony, Sen. Hendriksen,
presented to House Committee on Judiciary, subcommittee
# 2 - 6/7/83
l. 1 page - copy of relevant written minutes, House
Committee on Judiciary - 7/6/83
m 3 pages - transcript of relevant discussion, House
Committee on Judiciary - 7/6/83
n. 1 page - exhibit from House Committee on Judiciary -
7/6/83
o. 1 page - transcription of relevant House floor debate
- 7/7/83
p. 2 pages - transcription of relevant Senate floor
debate - 7/9/83
q. 3 pages - various incarnations of SB 707 (1983)
r. 2 pages - staff reports, re: SB 707 (1983)
s. 9 pages - material concerning HB 2365 (2007)
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