Brown v. Brown

• Decision Date: 25 January 1893
• Docket Number: 16,095
• Citation: 32 N.E. 1128,133 Ind. 476
• Parties: Brown et al. v. Brown
• Court: Indiana Supreme Court

32 N.E. 1128

133 Ind. 476

Brown et al. v. Brown

No. 16,095

Supreme Court of Indiana

January 25, 1893

Reported at: 133 Ind. 476 at 479.

From the Montgomery Circuit Court.

The judgment is affirmed.

G. D Hurley, M. E. Clodfelter and J. W. Kern, for appellants.

T. F Davidson and J. West, for appellee.

OPINION

Hackney, J.

The only question properly presented by the record, in this cause, is the sufficiency of the complaint of the appellants. It is in two paragraphs, seeking partition of a tract of land in Crawfordsville. Each paragraph alleges that the appellee was the second wife of James Brown, who died intestate, on the 21st day of February, 1890, leaving said appellee without children, but leaving appellants as his children by a former marriage; that on the 26th day of March, 1875, one Ramey conveyed said tract to said James and his wife, the appellee the deed of conveyance containing the following language:

"Each of the above grantees having contributed equally in the purchase of the above-described real estate, it is the express understanding and agreement that said real estate shall be held by them in common, and not in joint tenancy."

The theory of each paragraph was that the title conveyed to James and Margaret was in common, and not in entirety, and that upon the death of James, Margaret became the owner under the conveyance, of the undivided one-half, and, as widow, of the undivided one-sixth for life. The appellee contends that the deed conveyed a title in entirety, which, upon the death of James, she, as his widow, took as survivor.

But for the condition above quoted from the deed, we should incline to the view of the appellee. The question is now well settled in this State, that if a conveyance be made to husband and wife jointly, and without words limiting the estate taken, they will take as tenants in entirety. It is also well settled that, where there are, in the deed, words so limiting the estate conveyed, that it is apparent the grantor intended the grantees to hold by moieties, such intention will prevail. Hadlock v. Gray, 104 Ind. 596, 4 N.E. 167; Tiedeman on Real Property, section 244; 1 Washb. on Real Property, 674.

In Cloos v. Cloos, 55 Hun 450, 8 N.Y.S. 660, the deed in question conveyed land to the husband and wife, and the habendum clause, as in this deed here involved, contained the limitation to the grantees "as joint tenants, and not as tenants in common." The court said:

"It seems very clearly to have been the intention of the parties to create a joint tenancy. We think such a tenancy was created, unless it was impossible for husband and wife to take other than by the entirety where they take under one deed. We do not understand that such a disability exists where apt words are used in the conveyance." Hicks v. Cochran, 4 Edw. Ch. 111; McDermott v. French, 15 N.J. Eq. 78; 4 Kent's Com. 363.

The complaint was not bad on demurrer upon the construction of the deed, but the question is made that the complaint...