Thornburg v. Wiggins

• Citation: 34 N.E. 999,135 Ind. 178
• Parties: THORNBURG et al. v. WIGGINS et ux.
• Decision Date: 19 October 1893
• Court: Supreme Court of Indiana

135 Ind. 178

34 N.E. 999

THORNBURG et al.

v.WIGGINS et ux.

Supreme Court of Indiana.

Oct. 19, 1893.

Appeal from circuit court, Randolph county; Leander Monks, Judge.

Action by Daniel S. Wiggins and wife against William H. Thornburg and others to enjoin a sale under execution. Demurrers to the complaint were overruled, and defendants appeal. Reversed.

Thompson, Marsh & Thompson, for appellants. Watson & Watson and J. L. Engle, for appellees.

DAILEY, J.

This was an action instituted in the court below, in two paragraphs, in the first of which appellees allege, in substance, that on and before December 15, 1884, one Lemuel Wiggins was the owner of a certain tract of real estate, therein described, containing 80 acres; that on said day said Lemuel and his wife, Mary, executed and delivered to the appellees a warranty deed, conveying to them the fee simple of said real estate; that at the time of said conveyance the appellees were, ever since have been, and now are, husband and wife; that said deed conveyed to the appellees the title to said real estate, which they took and accepted, ever since have held, and now hold by entireties, and not otherwise; that appellees hold their title to said real estate by said deed of Lemuel Wiggins, and not otherwise; that on the 24th day of April, 1877, Isaac R. Howard and Isaac N. Gaston, who were defendants below, recovered a judgment in the Randolph circuit court for the sum of $403.70 and costs against one John T. Burroughs and the appellee Daniel S. Wiggins as partners doing business under the firm name of Burroughs & Wiggins; that on May 12, 1886, said Howard and Gaston caused an execution to be issued on said judgment, and placed in the hands of the appellant Thornburg, as sheriff of said county, and directed him to levy the same on said real estate, and that said sheriff did, on the 25th day of May, 1886, levy said execution on said real estate, or on the one-half interest in value thereof taken as the property of said appellee Daniel S. Wiggins, to satisfy said writ; that pursuant to the levy thereof said sheriff proceeded, by the direction of said Howard and Gaston, to advertise said real estate for sale under said execution and levy to make said debt, and did on the 8th day of June advertise the same for sale on the 3d day of July, 1886, and will on said day sell the same unless restrained and enjoined from so doing by the court; that said Daniel S. Wiggins has no interest in said premises subject to sale thereon; that the appellees hold the title thereto as tenants by entireties, and not otherwise; that the sale of said tract on said execution would cast a cloud on the appellees' title, etc. The second paragraph is the same as the first in substantial averments, except that in this paragraph the appellees set out as a part thereof a copy of the deed under which they claim title to said real estate as such tenants by entireties. The granting clause of the deed is as follows: “This indenture witnesseth that Lemuel Wiggins and Mary Wiggins, his wife, of Randolph county, in the state of Indiana, convey and warrant to Daniel S. Wiggins and Laura Belle Wiggins, his wife, in joint tenancy,” etc. Appellants separately and severally demurred to each paragraph of the complaint, and their demurrers were overruled by the court, to which the appellants excepted, and, refusing to answer the complaint, judgment was rendered in favor of appellees on said demurrers. Appellants appeal, assigning as errors the overruling of said demurrers, and urge that the appellees under the deed took as joint tenants, and hence that the husband's interest is subject to levy and sale upon execution.

A joint tenancy is an estate held by two or more persons jointly, so that during the lives of all they are equally entitled to the enjoyment of the land, or its equivalent, in rents and profits; but upon the death of one his share vests in the survivor or survivors until there be but one survivor, when the estate becomes one in severalty in him, and descends to his heirs upon his death. It must always arise by purchase, and cannot be created by descent. Such estates may be created in fee, for life, or years, or even in remainder. But the estate held by each tenant must be alike. Joint tenancy may be destroyed by anything which destroys the unity of title. Our law aims to prevent their creation, and they cannot arise except by the instrument providing for such tenancy. Griffin v. Lynch, 16 Ind. 398. 9 Amer. & Eng. Enc. Law, 850, says: “Husband and wife are, at common law, one person, so that when realty vests in them both equally, *** they take as one person; they take but one estate, as a corporation would take. In the case of realty, they are seised, not per my et per tout, as joint tenants are, but simply per tout; both are seised of the whole, and, each being seised of the entirety, they are called ‘tenants by the entirety,’ and the estate is an estate by entireties. *** Estates by entireties may be created by will, by instrument of gift or purchase, and even by inheritance. Each tenant is seised of the whole; the estate is inseverable, cannot be partitioned; neither husband nor wife can alone affect the inheritance; the survivor takes the whole.” This tenancy has been spoken of as “that peculiar estate which arises upon the conveyance of lands to two persons who are at the time husband and wife, commonly called ‘estates by entirety.”’ As to the general features of estates by entireties there is little room for controversy, and there is none between counsel. Our statute re-enacts the common law. Arnold v. Arnold, 30 Ind. 305;Davis v. Clark, 26 Ind. 424. Strictly speaking, estates by entireties are not joint tenancies, (Chandler v. Cheney, 37 Ind. 391;Hulett v. Inlow, 57 Ind. 412;) the husband and wife being seised, not of moieties, but both seised of the entirety per tout, and not per my, (Jones v. Chandler, 40 Ind. 589; Davis v. Clark, supra; Arnold v. Arnold, supra.) It has been said by this court in some of the earlier decisions that no particular words are necessary. A conveyance which would make two persons joint tenants will make a husband and wife tenants of the entirety. It is not even necessary that they be described as such, or their marital relation referred to. Morrison v. Seybold, 92 Ind. 302;Hadlock v. Gray, 104 Ind. 596, 4 N. E. Rep. 167; Dodge v. Kinzy, 101 Ind. 102;Hulett v. Inlow, 57 Ind. 414;Chandler v. Cheney, 37 Ind. 395. But the court has said that the general rule may be defeated by the expression of conditions, limitations, and stipulations in the conveyance which clearly indicate the creation of a different estate. Hadlock v. Gray, supra; Edwards v. Beall, 75 Ind. 401. Having its origin in the fiction or common-law unity of husband and wife, the courts of some states have held that married women's acts extending their rights destroyed estates by entirety, but this court holds otherwise, (Carver v. Smith, 90 Ind. 226;) and the greater weight of authority is in its favor. Our decisions hold that neither alone can alienate such estate. Jones v. Chandler, supra; Morrison v. Seybold, supra. There can be no partition. Chandler v. Cheney, 37 Ind. 391. A mortgage executed by the husband alone is void, (Jones v. Chandler, 40 Ind. 391;) and the same is true of a mortgage executed by both to secure a debt of the husband, (Dodge v. Kinzy, 101 Ind. 105;) and the wife cannot validate it by agreement with the purchaser to indemnify in case of loss arising on account of it, (State v. Kennett, 114 Ind. 160, 16 N. E. Rep. 173.) A judgment against one of them is no lien upon it. Ditching Co. v. Beck, 99 Ind. 250;McConnell v. Martin, 52 Ind. 434; Othwein v. Thomas, (Ill. Sup.) 13 N. E. Rep. 564. Upon the death of one, the survivor takes the whole in fee. Arnold v. Arnold, supra. The deceased leaves no estate to pay debts, (Simpson v. Pearson, 31 Ind. 1;) and during their joint lives there can be no sale of any part on execution against either, (Carver v. Smith, supra; Dodge v. Kinzy, 101 Ind. 105:Hulett v. Inlow, 57 Ind. 412; Chandler v. Cheney, supra; Davis v. Clark, supra; McConnell v. Martin, supra; Cox's Adm'r v. Wood, 20 Ind. 54.) The statutes extending the rights of married women have no effect whatever upon estates by entirety. Carver v. Smith, 90 Ind. 223. Such estate is in no sense either the husband's or the wife's separate property. The husband may make a valid conveyance of his interest to his wife, because it is with her consent. Enyeart v. Kepler, 118 Ind. 34, 20 N. E. Rep. 539. The rule that husband and wife take by entireties was enacted in this territory in 1807, nine years before Indiana was vested with statehood, and has been repeated in each succeeding revision of our statutes. It has thus been the law of real property with us for 86 years. Section 2922, Rev. St. 1881, provides that “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 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...