Sharpe v. Baker
| Decision Date | 28 November 1911 |
| Docket Number | 7,186 |
| Citation | 96 N.E. 627,51 Ind.App. 547 |
| Parties | SHARPE ET AL. v. BAKER ET AL |
| Court | Indiana Appellate Court |
Rehearing denied June 29, 1912, Reported at: 51 Ind.App. 547 at 566. Transfer denied December 12, 1912.
From Jackson Circuit Court; John M. Lewis, Judge.
Action by Finch Sharpe and another against Celestus Baker and others. From a judgment for defendants, the plaintiffs appeal.
Affirmed.
M. M Bachelder and Branaman & Branaman, for appellants.
Thomas M. Honan and Applewhite & Robertson, for appellees.
This action was brought by appellants, who are husband and wife, to quiet their title as tenants by the entireties to the real estate described in the complaint, and also to eject appellees Morgan P. Baker and Celestus Baker, his wife, from the possession of said real estate, and to set aside and cancel a certain mortgage on said real estate executed by said Baker and wife to appellee James B. Thompson.
The complaint was in the usual form, and no question is raised as to its sufficiency. The defendant filed a second paragraph of answer, to which appellants addressed a demurrer for want of facts. The trial court overruled this demurrer, to which ruling appellants excepted, and refusing to plead further, judgment was entered against them for costs. The only question presented for decision is the sufficiency of this paragraph of answer.
From the pleadings it appears that a joint judgment was taken against appellees at a time when they were the owners as tenants by the entirety of the real estate in controversy, and that an execution was issued on said judgment against both of said appellants, and levied on the estate so held by them as entireties. It further appears that said land was regularly advertised and sold under said execution as the property of appellants, and that after the year of redemption had expired the sheriff made a deed for said real estate to the purchaser at said sale on execution. Appellees Baker and wife claim title and possession under and by virtue of said sheriff's deed, while appellants claim that the estate held by them as tenants by the entireties was not subject to sale on execution, and that the sheriff's deed, based on such levy and sale, did not have the effect to divest their title, and that they are still the owners thereof as tenants by the entireties. If the real estate held by appellants as tenants by the entireties was subject to levy and sale in satisfaction of a joint judgment rendered against them, then the demurrer to said paragraph of answer was properly overruled; but, if it was not subject to levy and sale in satisfaction of said judgment the demurrer should have been sustained.
The question we are thus called on to decide is entirely new. The industrious and able attorneys who have briefed this case and argued it orally before the court have been unable to cite a case from any court in which the question has been decided. The writer of this opinion has made diligent search in the hope of finding a decision of some court which might serve as a precedent, but without avail. We must therefore determine this question from a consideration of the legal principles which relate to the creation of estates by the entireties, and which govern the rights and liabilities arising therefrom as affecting the holders of such estates.
It is claimed by appellants that an estate by entireties has been always regarded by the courts as one created for the enjoyment of the husband and wife during coverture, and that such an estate was intended to be preserved for the use of the family as a homestead, and that it should be protected by the courts against the improvidence of either or both, to the end that it may be so preserved. This contention has led us to inquire as to the source and origin of estates by entireties. At common law such estates were treated as a species of joint tenancy. Case v. Owen (1894), 139 Ind. 22, 38 N.E. 395, 47 Am. St. 253. In the ancient language of the law, joint tenants were seized of the estate per my et per tout, that is to say, each was the owner of his equal share for the purpose of immediate alienation, but for the purpose of possession and survivorship each owned the whole. 1 Preston, Estates *136; Wilkins v. Young (1896), 144 Ind. 1, 41 N. 68, 41 N.E. 590, 55 Am. St. 162.
By a fiction of the common law, the husband and wife were regarded as one person, the legal existence of the wife being suspended during coverture, or at least incorporated and consolidated into that of the husband. 1 Blackstone's Comm. *442. Upon this legal fiction of the unity of husband and wife rests all the distinctions and peculiarities which distinguish the estate by entireties from other joint estates. "It is the legal notion of unity of two persons, who are husband and wife, which gives occasion to the construction of an entirety of interest on their tenancy." 1 Preston, Estates *132. An estate by entireties is created when a husband and wife take an estate to themselves jointly by grant or devise, or by limitation of a use made to them during coverture. 1 Preston, Estates *131. On account of the unity of persons of husband and wife by marriage, they take the estate as one person, and so where an estate was limited to a husband and wife and to a third person jointly, such third person, as against the husband and wife, became an owner as joint tenant of the one-half of the estate, and the husband and wife became the owners of the other one-half as tenants by entireties as between themselves, but as to such third person they held as joint tenant.
By reason of the common law fiction heretofore mentioned, the husband and wife, being one person in law, were each incapable of holding any separate interest in an estate so acquired. They could not take by moieties, they were each siezed of the whole, and neither was seized of any divisible part, and so, as a consequence of the unity of their persons, they were said to hold such estate per my et non per tout. 2 Blackstone's Comm. *182. The right of the survivor to take the whole estate is common, both to estates in joint tenancy and estates by entireties; but the right by which the survivor holds in each is not the same. If a joint tenant dies during the existence of the joint tenancy, his moiety goes to the survivor by the jus accrescendi, or right of survivorship; but when a tenant by entirety dies, the survivor holds the entire estate, not by virtue of any right which he acquires as survivor, but by virtue of the original grant or devise. On the vesting of an estate by entireties, both tenants, by reason of the unity of their person by marriage, become seized of the whole estate, and neither is seized of any divisible part thereof; and therefore on the death of one, the survivor, being already seized of the whole, can acquire no new or additional interest by virtue of his survivorship. Beddingfield v. Estill & Newman (1906), 118 Tenn. 39, 100 S.W. 108, 9 L.R.A. (N. S.) 640.
An estate in joint tenancy may be severed or destroyed by the act of one of the tenants so as to defeat the right of survivorship of the other joint tenant; but a tenant by the entireties cannot, during coverture, by deed, mortgage, devise, or other act of his own, defeat the right of the surviving husband or wife to hold the entire estate. This necessarily follows as a consequence of the unity of the husband and wife which prevents either from holding any moiety or divisible interest capable of being divested by the individual act of either.
There may be other distinguishing characteristics of the estate by the entireties to which we have not referred; but we think we have gone far enough to show that every peculiarity incident to such estates, distinguishing them from estates in joint tenancy, can be traced to the fiction of the unity of husband and wife. We therefore conclude that the estate by entireties was originally a modified form of joint tenancy, and that the modifications recognized were rendered necessary by the common law unity of husband and wife. We find nothing in the origin of the estate to indicate that any of the incidents peculiar to said estate rested upon any reason of public policy. It is true that the courts held that one of the tenants alone could not dispose of the estate or incumber it so as to defeat the right of the other to hold as survivor but the reason of the rule grew out of the necessities created by the nature of the estate and by the legal unity of the tenants by which it was held. The reason for such rule did not arise out of any tender consideration by the courts for such estates more than others, or out of any policy of the law to preserve such an estate for the use of the family during the coverture of the husband and wife. There is nothing in the manner in which such estates have been treated by the courts in later times to indicate that it was the policy of the courts to preserve them to the families. Before the married woman's act, the husband during coverture had the right to the possession and...
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