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Law School Case Brief

Sawada v. Endo - 57 Haw. 608, 561 P.2d 1291 (1977)

Rule:

Neither husband nor wife has a separate divisible interest in the property held by the entirety that can be conveyed or reached by execution. A joint tenancy may be destroyed by voluntary alienation, or by levy and execution, or by compulsory partition, but a tenancy by the entirety may not. The indivisibility of the estate, except by joint action of the spouses, is an indispensable feature of the tenancy by the entirety.

Facts:

The Sawadas were injured when struck by a motor vehicle operated by Kokichi Endo. On June 17, 1969, the wife filed her complaint for damages against Kokichi Endo. The complaint and summons in each case was served on Kokichi Endo on October 29, 1969. On the date of the accident, Kokichi Endo was the owner, as a tenant by the entirety with  his wife, Ume Endo, of a  parcel of real property situated at Wahiawa, Oahu, Hawaii. By deed, dated July 26, 1969, Kokichi Endo and his wife conveyed the property to their sons. This document was recorded in the Bureau of Conveyances on December 17, 1969. No consideration was paid by the grantees for the conveyance. Both were aware at the time of the conveyance that their father had been involved in an accident, and that he carried no liability insurance. Judgment was entered in favor of Helen Sawada and against Kokichi Endo. Ume Endo died, thus, was survived by her  husband, Kokichi. After being frustrated in their attempts  to obtain satisfaction of judgment from the personal property of Kokichi Endo, the Sawadas brought suit to set aside the conveyance which is the subject matter of this controversy. The trial court refused to set aside the conveyance, and the Sawadas appeal.

Issue:

Is the interest of one spouse in real property, held in tenancy by the entireties, subject to levy and execution by his or her individual creditors?

Answer:

Yes.

Conclusion:

Neither husband nor wife has a separate divisible interest in the property held by the entirety that can be conveyed or reached by execution. A joint tenancy may be destroyed by voluntary alienation, or by levy and execution, or by compulsory partition, but a tenancy by the entirety may not. The indivisibility of the estate, except by joint action of the spouses, is an indispensable feature of the tenancy by the entirety.

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