Richardson v. Richardson, 18130

• Decision Date: 12 April 1951
• Docket Number: No. 18130,18130
• Citation: 121 Ind.App. 523,98 N.E.2d 190
• Parties: RICHARDSON et al. v. RICHARDSON et al.
• Court: Indiana Appellate Court

Page 190

98 N.E.2d 190

121 Ind.App. 523

RICHARDSON et al. v. RICHARDSON et al.

No. 18130.

Appellate Court of Indiana, in Banc.

April 12, 1951.

Hubert E. Wickens, Hugh D. Wickens, Greensburg, for appellants.

David A. Myers, Raymond B. Rolfes, Greensburg, for appellees.

ACHOR, Judge.

This was an action filed by appellant, Maxine J. Richardson, (plaintiff in the court below) against the appellees herein. Appellants William Dale Richardson and Richard Dale Richardson were made defendants to the cross-complaint of the appellees in the court below. In this action appellant Maxine J. Richardson claimed to be the owner of a one-fourth interest as tenant in common pursuant to the will of William Dale Richardson, her deceased husband.

The deed by which the said William Dale Richardson acquired title with the appellees herein contained the following words of conveyance in its premises or granting clause:

'Convey and Warrant to Ray M. Richardson, W. Dale Richardson, Lavon Richardson and Lena Richardson, in equal proportions and in case of the death of any one or more of the said grantees, his or her interest in said land shall go to the other surviving grantees then living in equal proportions.'

The question before this court is, does the above provision of conveyance create a joint tenancy, as maintained by the appellees, or does it create a tenancy in common, as contended by appellants? The court below found 'That said deed vested title in Ray M. Richardson, Lavon Richardson, Lena Richardson and W. Dale Richardson, as joint tenants.' Pursuant to this conclusion of law judgment was rendered for the appellees against the appellants.

The statute of this state applicable to the creation of joint tenancies and tenancies in common is as follows, § 56-111, Burns' 1943 Replacement: 'All conveyance and devises of lands, or of any interest therein, made to two (2) or more persons, except as provided in the next following section, shall be construed to create estates in common and not in joint tenancy, unless it shall be expressed therein that the grantees or devisees shall hold the same in joint tenancy and to the survivor of them or it shall manifestly appear, from the tenor of the instrument, that it was intended to create an estate in joint tenancy.'

By reason of this statute appellant correctly asserts that, whereas joint tenancies were favored under the common law, that the opposite presumption now prevails under our statute. Simons v. Bollinger, 1899, 154 Ind. 83, 96, 56 N.E. 23, 48 L.R.A. 234.

Appellant contends that the granting clause in the new deed is severable in two parts: that the first part being 'Convey and Warrant to Ray M. Richardson, W. Dale Richardson, Lavon Richardson and Lena Richardson, in equal proportions * * *' with the remainder of the sentence constituting a separate, limited, ambiguous, repugnant habendum thereto. Appellant charges that the second part of the sentence is ambiguous in that it does not contain the words 'joint,' 'jointly,' or 'joint tenancy,' and that it is repugnant in that it attempts to control the 'inheritance' of the real estate after that right had already been vested absolutely under the previous clause. They maintain that under our statute, § 56-115, Burns' 1943 Repl. the words 'conveys and warrants' conveyed title in fee simple to all the named grantees, and that the fee simple title having been once vested, the remaining clause regarding survivorship, being ambiguous and repugnant thereto, is to be given no effect. The following cases are cited as supporting this general position: Shoe v. Heckley, 1922, 78 Ind.App. 586, 134 N.E. 214; Finney v. Brandon, 1922, 78 Ind.App. 450, 135 N.E. 10; Lamb v. Medsker, 1905, 35 Ind.App. 662, 74 N.E. 1012; Chamberlain v. Runkle, 1902, 28 Ind.App. 599, 63 N.E. 486.

However, the rule seems well established, 16 Am.Jur., § 239, page 573, '* * * that where, by statutory provision, the use in the granting clause of words of inheritance is rendered unnecessary, neither the use of such words nor the fact that the fee might pass to the grantee under the statute will render subsequent clauses limiting the estate void for repugnance. * * *' (Our italics.) Evans v. Dunlap, 1905, 36 Ind.App. 198, 75 N.E. 297; Adams v. Merrill, 1908, 45 Ind.App. 315, 85 N.E. 114, 87 N.E. 36. See also 84 A.L.R. 1073.

Appellees, on the other hand, contend that the deed before the court is distinguishable from those cited in the cases by appellants in that there is no habendum separate from the 'granting clause,' as was...