Simons v. Bollinger

• Decision Date: 24 January 1900
• Citation: 56 N.E. 23,154 Ind. 83
• Parties: SIMONS et al. v. BOLLINGER.
• Court: Indiana Supreme Court

154 Ind. 83

56 N.E. 23

SIMONS et al.

v.BOLLINGER.

Supreme Court of Indiana.

Jan. 24, 1900.

Appeal from circuit court, Lagrange county; H. D. Wilson, Judge.

Action to quiet title by Benjamin B. Bollinger against Milliard W. Simons and others. Judgment for plaintiff, and defendants appeal. Affirmed.

F. J. Dunton, J. E. McClaskey, and J. M. Van Fleet, for appellants. Zollars, Worden & Zollars and Drake & Merritt, for appellee.

HADLEY, C. J.

Kerr and wife held land conveyed to them by deed in the words following: “Convey and warrant to David S. Kerr and Clara Kerr, his wife, jointly, the,” etc. The only question presented for decision is whether the words employed created in David and Clara Kerr an estate in joint tenancy or an estate by entireties. It is agreed that, if they created an estate in joint tenancy, the judgment should be reversed, and, if an estate by entirety, it should be affirmed. It is also conceded by appellants that “the omission from the deed of the word ‘jointly’ would clearly make Kerr and wife tenants by the entirety, so that the exact question is, does that word make them joint tenants?”

Section 3341, Burns' Rev. St. 1894 (section 2922, Horner's Rev. St. 1897), is as follows: “All conveyances and devises of lands, or of any interest therein, made to two 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.” The exception is in these words: “The preceding section shall not apply to mortgages, nor to conveyances in trust, nor when made to husband and wife; and every estate vested in executors or trustees, as such, shall be held by them in joint tenancy.” It will be observed that the question we have here is not controlled by the statutes, but must be determined by the rules of the common law. Under the common law the two estates have been recognized from a very early period in the history of the law. The distinctive difference between them is: (1) A joint tenancy may be vested in any number of natural persons, more than one. A tenancy by entirety can be vested only in husband and wife. (2) Joint tenants take by moieties, and each is seised of an undivided moiety and of the whole (per my et per tout), while husband and wife take each the entirety (per tout). (3) Joint tenants may severally alienate their interests. Husband and wife can do so only by acting jointly. (4) Joint tenants may sever and continue to hold their estates. The estate of husband and wife is inseverable while it remains theirs. (5) Joint tenants may have partition. Husband and wife cannot, during the marriage. Upon the death of one joint tenant, his estate is cast upon the survivors, and the last survivor takes the whole. Upon the death of husband or wife, the survivor takes the whole. Freem. Co-Ten. § 64. Undoubtedly there is an element of joint holding in both estates. Joint tenants hold jointly the whole and the several parts. Tenants by the entirety hold jointly the whole. This common jointure has been recognized by eminent authors in treating of tenancies by entireties as a species of joint tenancy. “A still more peculiar joint estate is that which belongs to a husband and wife, where the same is conveyed to them as such.” 1 Washb. Real Prop. (4th Ed.) p. 672, § 6. Preston says: “Tenancy by entireties is when husband and wife take an estate to themselves jointly by grant or devise.” 2 Prest. Est. 129. “This is a peculiar tenancy, and arises at common law when an estate is conveyed or demised to a husband and wife jointly during coverture.” Whart. Conv. 121. “Tenancy by entireties occurs * * * where the husband and wife are jointly seised, to them and their heirs, of an estate made during the coverture. * * * It constitutes the most intimate union of ownership known to the law.” 2 Challis, Real Prop. 282. In many of our cases this court has referred to the seisin of husband and wife as being joint. In Bevins v. Cline's Adm'r, 21 Ind. 40, it is said: “There are four kinds of joint tenancies at common law, viz.: In common, in parcenary, in joint tenancy, and in tenancy by entireties. * * * A conveyance of land made to a man and woman, who are then husband and wife, they take as joint tenants, by entireties.” To the same effect, see Davis v. Clark, 26 Ind. 424;Jones v. Chandler, 40 Ind. 588, 592;Anderson v. Tannehill, 42 Ind. 141;Patton v. Rankin, 68 Ind. 245;Phelps v. Smith, 116 Ind. 387, 391, 17 N. E. 602, and 19 N. E. 156;Carver v. Smith, 90 Ind. 222;Morrison v. Seybold, 92 Ind. 298. In Hadlock v. Gray, 104 Ind., at page 598, 4 N. E. 168, it was said by Elliott, J.: “It is true that where real property is conveyed to husband and wife jointly, and there are no limiting words in the deed, they will take the estate as tenants in entirety.” It is also said by Hackney, J., in Brown v. Brown, 133 Ind., at page 477, 32 N. E. 1128: “The question is now well settled in...