Le Roy v. Wood

• Decision Date: 24 May 1943
• Docket Number: 17095.
• Citation: 47 N.E.2d 604,113 Ind.App. 397
• Parties: LE ROY v. WOOD.
• Court: Indiana Appellate Court

47 N.E.2d 604

113 Ind.App. 397

LE ROY v. WOOD.

No. 17095.

Appellate Court of Indiana, in Banc.

May 24, 1943

Church & Chester, of Elkhart, for appellant.

Proctor & Proctor, of Elkhart, for appellee.

DRAPER Judge.

The appellant filed suit to partition certain real estate in Elkhart County, alleging that her father, whose name was then William Brown Wood, was married to the appellee, whose name became by marriage Laura Beech Wood, on March 10, 1940, and that the appellee thereby became the second childless wife of William Brown Wood; that the real estate was conveyed to her father and the appellee on August 1, 1940, by deed wherein they were described as William B. Ming and Laura Ming husband and wife, but that their true name was Wood and there was no person by the name of Ming actually connected with the conveyance; that on February 5, 1941, William Brown Wood's name was changed to William Brown Ming by order of the Elkhart Circuit Court; that the appellant is the only child of her father by a previous marriage and that neither her father nor the appellee ever filed any certificate with the Clerk of the Elkhart Circuit Court stating their full name and residence as being engaged in transacting business under the name of Ming. The complaint alleges that by virtue of this conveyance her father and the appellee became the owners of the real estate as tenants in common, thus entitling appellant to an undivided one-half interest therein, subject to a life estate in one-third thereof in the appellee and further alleges that to adjudge that appellant's father and the appellee took title as tenants by the entireties would be against the public policy of the State of Indiana.

A demurrer to this complaint was sustained, the appellant refused to plead further and judgment was rendered against her. The correctness of the ruling on the demurrer is thus the only question presented.

A deed naming a non-existent grantee is a nullity and passes no legal title to anyone. Harwood v. Masquelette et al., 1932, 95 Ind.App. 338, 181 N.E. 380. This rule does not apply, however, to a person in existence who is described by a fictitious or assumed name, and if a living or legal person is intended as the grantee and identifiable, the deed is valid however he may be named in the deed. 16 Am.Jur., § 78, p. 483. In this case we are not concerned with any question of identification, for the complaint alleges that the appellant's father and the appellee were the rightful grantees (although as tenants in common), and the appellant's claim to title rests upon the same conveyance.

§ 56-111, Burns' 1933, provides that "all conveyances 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...