Enyeart v. Kepler

• Citation: 118 Ind. 34,20 N.E. 539
• Parties: Enyeart v. Kepler et al.
• Decision Date: 14 March 1889
• Court: Supreme Court of Indiana

118 Ind. 34

20 N.E. 539

Enyeart

v.Kepler et al.

Supreme Court of Indiana.

March 14, 1889.

Appeal from circuit court, Wayne county; D. W. Comstock, Judge.

Action to quiet title, brought by William B. Enyeart against Orestes A. Kepler et al. Judgment for defendants on demurrer to complaint. Plaintiff appeals.

W. F. Medsker and Charles E. Shively, for appellant. Thomas J. Study, for appellees.

Olds, J.

This is an action to quiet title to real estate. The complaint alleges that the appellant (the plaintiff below) is the owner in fee-simple, and entitled to the possession, of the following described real estate in the county of Wayne and state of Indiana, to-wit: The N. 1/2 of the N. E. 1/4 of section 12, in township 16, of range 12 E., containing 80 acres, more or less. That he acquired title to the real estate in the following manner, i. e.: On the 23d day of December, 1876, one Abiram Boyd, who was then and there the owner in fee of said lands, and in possession thereof, executed and delivered a deed, with covenants of warranty, conveying said lands to Martha Enyeart and William B. Enyeart, the plaintiff, who were then and there husband and wife. That afterwards, on the 15th day of December, 1880, and while the plaintiff and his said wife were owning and in possession of said real estate, the plaintiff executed and delivered to his said wife, Martha Enyeart, a quitclaim deed purporting to convey said real estate to his wife, in which deed his wife did not join. That on the 8th day of December, 1885, said Martha, while the wife of the plaintiff, departed this life testate, at the county of Wayne, and state of Indiana, at which time said Martha and plaintiff were occupying said land. That Martha devised the whole of said land to the defendants. That under the provisions of the will defendants are claiming an interest in said real estate adverse to the plaintiff, which claim is without right, and unfounded, and a cloud upon the plaintiff's title. That the deed executed by the plaintiff to his wife is void and of no effect, and plaintiff takes the said real estate as surviving husband and widower of his deceased wife, Martha Enyeart. Prayer for judgment quieting title. Appellees demurred to the complaint for the reason that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer. Plaintiff refused to amend, and the court rendered judgment upon demurrer for appellees.

The ruling of the court in sustaining the demurrer to the complaint is assigned as error. The conveyance of the land by Abiram Boyd, who owned the same in fee-simple, to William B. and Martha Enyeart, husband and wife, vested the title in them by entireties. It is insisted by counsel for the appellant that the quitclaim deed by appellant to his wife was void for the reason that the husband had no such interest in the land as he could convey to the wife; that an estate, vested in the husband and wife by entireties, cannot be conveyed by the husband without the wife joining in the deed; and that a deed direct from the husband to the wife is void, and passes no title, and the husband, as survivor, takes the whole title. The rule in regard to estates by entirety is that neither can sever the union of interest without the consent of the other, but this is construed to mean that the one cannot sever the interest, or make any disposition of the estate, so as to affect the right of survivorship. In the case of Washburn v. Burns, 34 N. J. Law, 18, the court, speaking of the husband's rights in an estate by entirety, says: “The limit of this right of the husband is that he cannot do any act to the prejudice of the ulterior rights of the wife.” I Bish. Mar. Wom. § 622; Ames v. Norman, 4 Sneed, 683.

There is a discrepancy in the authority as to the right of the husband to convey or incumber his interest in the estate without the assent of the wife, and as to whether or not the interest of the husband is liable to sale on execution against him; some authorities holding that he may convey or incumber his interest by deed without the assent of the wife, and that his interest is subject to sale on execution, and that such deed or sale passes all the title of the husband in the land, and in case the husband survives the wife the purchaser takes the fee in the land. But by a long line of decisions in our own state it is held that the husband cannot convey or incumber his interest in the land without the assent of the wife, and that his interest is not subject to sale on execution. Washb. Real Prop. (5th Ed.) p. 706, § 2, in treating of estates by entirety, says: “In such case the survivor does not take as a new acquisition, but under the original limitation, his estate being simply freed from participation by the other, so that if, for instance, the wife survive, and then...