Wilkins v. Young

• Decision Date: 16 October 1895
• Docket Number: 16,996
• Citation: 41 N.E. 68,144 Ind. 1
• Parties: Wilkins et al. v. Young et al
• Court: Indiana Supreme Court

41 N.E. 68

144 Ind. 1

Wilkins et al. v. Young et al

No. 16,996

Supreme Court of Indiana

October 16, 1895

From the Allen Circuit Court.

The judgment as against Herman Wilkins is reversed and the cause remanded, with instructions to the lower court to grant him a new trial and leave to reform the issues if requested. The judgment as to John H. Wilkins is affirmed.

W. G Colerick and M. V. B. Spencer, for appellees.

S. M Hench and H. C. Hartman, for appellants.

OPINION

Jordan, J.

Action by appellees in the lower court, wherein they sought to recover the possession of certain described real estate from the appellant, John H. Wilkins, and to quiet their title thereto against both of the appellants. A trial resulted in a judgment in favor of appellees, from which appellants prosecute this appeal, and assign numerous errors, whereby they assail certain rulings and decisions of the trial court and the final judgment and decree thereof.

At the request of the parties the court found the facts specially and stated its conclusion of law thereon. As this finding is supported in its material points by the evidence and as the principal questions involved in this appeal are fully presented by said finding and conclusions of law thereon, we deem it only necessary to consider the alleged errors arising out of these conclusions.

The following are the material facts as found by the court:

"In 1870 one Samuel Gordon married Phoebe Ginther who had been prior to that time, divorced from a former husband, one Peter Ginther; that appellees are the only children and heirs of said Phoebe, being the fruits of her former marriage to said Peter; that no children were born unto her by virtue of her marriage to Samuel Gordon; that said Samuel Gordon and said Phoebe lived together as husband and wife from the year 1870 until the death of said Samuel, which occurred at Ft. Wayne, Indiana, on the 14th day of April, 1886; that his said wife Phoebe survived him until June the 22d, 1890, at which date she died intestate, leaving surviving her appellees as her children and only heirs; that on November 23, 1878, one James B. White, who was then the owner, in fee simple, of the real estate in controversy, situated in Allen County, Indiana, for and in consideration of the sum of four hundred and fifteen dollars, together with his wife, executed a warranty deed, whereby they conveyed to said Samuel Gordon and Phoebe, his wife, said real estate; that in said deed, immediately after the description of the premises, are the following words: "To have and to hold the same to the said Samuel Gordon and Phoebe Gordon, his wife, in joint tenancy, their heirs and assigns forever." This deed was acknowledged and recorded in the recorder's office of said county. On the 15th day of October, 1885, Samuel Gordon, the husband, executed to the appellant, Herman Wilkins, a mortgage upon the said lands, to secure the payment of two hundred dollars, as evidenced by a promissory note; that his wife (Phoebe) did not join with him in the execution of said mortgage.

"On the 17th day of October, 1895, said Samuel Gordon executed a will, wherein he willed that at his death the said real estate should go to the appellant, John H. Wilkins. After the death of Samuel Gordon said will was duly probated in the circuit court of Allen County, Indiana, at which county said testator died. After the death of Samuel Gordon said John H. Wilkins took possession of said real estate, and that the rental value thereof is $ 60 per annum. The only right or title of the appellant, John H. Wilkins, is under the devise to him in said will. The only right, title and interest that appellant, Herman Wilkins, claims in and to said real estate, is under the mortgage executed to him by said Samuel Gordon, and for taxes assessed against the said land and paid by him for the purpose of protecting his said mortgage lien. The only right or title in said real estate claimed by appellees is by inheritance thereof, as the children and heirs of their deceased mother, Phoebe Gordon." Upon this finding the court stated its conclusions of law substantially as follows:

"First, that under the said deed said Samuel Gordon and Phoebe, his wife, held the said real estate as tenants by entirety, and that at the death of her husband, Samuel, she became the sole owner thereof, and upon her death the same descended to appellees as her heirs.

"Second, that the mortgage executed by Samuel Gordon to Herman Wilkins is void, because the said Phoebe, his wife, did not join in the execution thereof.

"Third, that the defendant, John H. Wilkins, did not acquire or take any title to said real estate under the will of Samuel Gordon, for the reason that he (Gordon) had no interest in said real estate, subject to be devised by will.

"Fourth, that said defendant John H. Wilkins unlawfully holds possession of said real estate to plaintiffs' damage in the sum of $ 240."

To each of these conclusions of law appellants each separately excepted. Over their exceptions and objections the court, upon this finding, rendered judgment in ejectment against John H. Wilkins and quieted appellees' title against both of the appellants, and decreed that the mortgage of Herman Wilkins was null and void, and that the devise of said real estate by Gordon to John H. Wilkins was of no effect.

In this State a joint tenancy can only be created as provided by section 3341, R. S. 1894, section 2922, R. S. 1881. Where lands are conveyed to husband and wife, and there are no words of limitation in the deed, or where it does not manifestly appear from the tenor thereof, that it was intended to create an estate in joint tenancy, they will take as tenants by entirety. Hadlock v. Gray, 104 Ind. 596, 4 N.E. 167, and authorities there cited. It is equally well settled by the general rule controlling in a conveyance of real estate that the husband and wife may be defeated by conditions, limitations or stipulations in the instrument of conveyance, when they clearly indicate an intention of the grantor to create in the grantees a different estate. A joint tenancy may be created to exist between husband and wife by the express terms or tenor of the deed of conveyance. Thornburg v. Wiggins, 135 Ind. 178, 34 N.E. 999, and authorities there cited. This question being settled, we are next to determine what was the character of the tenancy created by the conveyance of White to Gordon and wife. It is obvious and clear, we think, that the following expression or stipulation in said deed, namely "To have and hold the same to the said Samuel Gordon and Phoebe Gordon, his wife, in joint tenancy, their heirs and assigns forever," brings the conveyance, in question, clearly within the provisions of section 3341, supra, and we are, therefore, constrained to hold that by these express...