Pavy v. Pavy

• Decision Date: 12 April 1951
• Docket Number: No. 18168,18168
• Citation: 121 Ind.App. 194,98 N.E.2d 224
• Court: Indiana Appellate Court
• Parties: PAVY et al. v. PAVY.

Page 224

98 N.E.2d 224

121 Ind.App. 194

PAVY et al. v. PAVY.

No. 18168.

Appellate Court of Indiana, in Banc.

April 12, 1951.

James T. Hooper, Sr., Lawrenceburg, for appellants.

Edgar Baird, Rising Sun, Hartell F. Denmure, Aurora, for appellee.

WILTROUT, Chief Judge.

The question presented by this appeal is stated by the parties as follows: 'Can a married woman maintain an action in partition against her husband where he is insane and under a duly appointed and legal guardian, when the real estate involved in the partition action is owned by the husband and wife as tenants in common?'

The real estate in question had been conveyed to appellee and her husband as tenants by entireties. Thereafter, in an action prosecuted by the guardian, apparently under Burns' 1943 Repl. §§ 56-402, 56-403, by decree of the Ohio Circuit Court the tenancy by entireties was converted into an estate in common and each became the owner of an undivided one-half thereof. Appellee then filed this action against her husband and the guardian of her husband for partition. The court concluded that partition was proper, found that the real estate was not susceptible to division and ordered it sold by a commissioner.

The statute governing partition of real estate, Burns' 1946 Repl. § 3-2401 et seq., provides in part: 'Any person holding lands as joint tenant or tenant-in-common, whether in his own right or as executor or trustee, may compel partition thereof in the manner provided in this act. * * *'

'3-2405 But if, upon trial of any issue, or upon default, or by confession or consent of parties, it shall appear that the land of which partition is demanded can not be divided without damage to the owners, then, and in that case, the court in its discretion may order the whole or any such part of the premises to be sold, as provided for in section eighteen of this act.'

By this statute the right to a division is one of the incidents of the cotenancy, together with the right to a sale of the whole tract of land in the event said land is indivisible. McClure v. Raber, 1939, 106 Ind.App. 359, 19 N.E.2d 891.

'In a partition proceeding, the rights of the parties, whether legal or equitable, are equally within the cognizance and protecting power of the courts.' Coquillard v. Coquillard, 1916, 62 Ind.App. 426, 113 N.E. 474, 477.

Appellant's position is that at common law neither husband nor wife may maintain an action at law against the other, by reason of the common law fiction of the unity of the parties; that authorization for a partition action by the wife, if it exists, must be found in the statutes.

Thus in Howe v. Blanden, 1849, 21 Vt. 315, the statute under consideration, like our statute, provided that 'any person' having or holding real estate in common, may have partition in the manner therein provided. The court said, 'We think a feme covert cannot, under this statute, compel a partition against her husband, nor the husband against his wife. The expression 'any person,' in the statute, should be restrained to such a person, as could be a suitor in the common law courts. It would seem rather incongruous, to enforce a partition, so long as the husband is entitled to hold the wife's part as tenant by the curtesy.' The court then observed, 'If a partition can be enforced between Packer and his wife, it appears to me, that a resort should be had to chancery,--where the wife may institute proceedings against her husband, by means of a next friend, whenever her separate interest requires it.' See also Pentek v. Pentek, 1934, 117 N.J.Eq. 292, 175 A. 623, 624, which quotes from Fulper v. Fulper, 1896, 54 N.J.Eq. 431, 34 A. 1063, 32 L.R.A. 701: 'Equity will decree a partition between husband and wife, if they hold as tenants in common, to the same extent which it would if they were strangers.'

'It has been held that by reason of the various acts providing for the emancipation of married women as to their separate property and permitting husband and wife to deal with each other as though each were sold, a wife may have partition against her husband of property held in their joint names.' Tiffany, Real Property 312, § 475 (3rd ed.). Shafer v. Shafer, 1928, 30 Ohio App. 298, 163 N.E. 507; Shively v. Shively, 1948, Ohio App., 88 N.E.2d 280, 88 N.E.2d 615; Moore v. Moore, 1916, 59 Okl. 83, 158 P. 578.

To the same effect see 68 C.J.S., Partition, § 56e, page 85, where it is stated: 'While neither husband nor wife may, in the absence of statutory authorization, maintain an action at law against the other for partition, under the married women's acts which with few limitations have emancipated the wife from the disability of coverture, either husband or wife may obtain partition on a bill in equity of land which they hold as cotenants.'

In 26 Am.Jur., Husband and Wife, § 89, p. 715, it is said: 'While there is...