186 Ind. 417 | Ind. | 1917
This action was brought by appellees against appellant asking for partition of real estate on a complaint in one paragraph. To this complaint a demurrer for want of facts was filed and overruled by the trial court. Appellant filed an answer in two para
The claim of appellees and appellant to said real estate in question is based upon the' construction to be given a certain deed set out in the paragraphs of answer; appellant being the heir at law and devisee of Mary Faulkenburg, deceased, and appellees being the heirs at law of Littleton Faulkenburg, deceased.
The deed as pleaded in each paragraph of answer, omitting formal parts and description of land, is as follows:
“This indenture witnesseth that I, George Feltner of Crawford County, in the state of Indiana, convey and warrant to Littleton Faulkenburg and Mary Faulkenburg, his wife of Perry county, Indiana, for the sum of six hundred dollars the following real estate in Crawford county, in the state of Indiana, (here follows a description of the land in question) the said Littleton Faulkenburg and his wife to hold the above described land during their natural life and then half of the proceeds to go to his heirs and half to hers”.
This deed was duly executed January 15, 1897. In addition to setting out the deed in his answer, it is further averred therein that Littleton Faulkenburg died intestate in said county in the year 1900; that said Mary, his widow, presented a request to the circuit court on March 29, 1900, to have the estate of her deceased husband set off to her as worth less than $500; that after due and proper proceedings said court set off and confirmed in her the one-half interest in said lands as belonging to the deceased husband; that said
Several questions are involved in the construction of this deed. If the deed contains words such as will bring it within the rule in Shelley’s Case, then these parties took a fee-simple title in the lands. If they took title in fee, Was the same a title by entireties, or was it a joint title or a title as tenants in common?
It will be seen by the terms of the statutes above referred to that in no event shall a conveyance to husband and wife be as tenants in common or joint tenants, unless so expressed in the deed, but as tenants by entireties.
In the case of Jones v. Chandler (1872), 40 Ind. 588,
In either event, the facts pleaded in the two paragraphs of answer were sufficient to withstand a demurrer, and the court erred in its ruling in that respect. Judgment is reversed, with instructions to overrule the demurrers to the first and second paragraphs of answer.
Note. — Reported in 116 N. E. 577. Estates by entireties: definition of, 30 L. R. A. 306, specifically on the question of survivor-ship of one spouse after the death (actual or civil) of the other, 30 L. R. A. 310; creation of, by conveyances to husband and wife, 32 Am. Dec. 444, 68 Am. Dec. 55, 97 Am. Dec. 428, 26 Am. Rep. 65. See under (1, 3, 4) 21 Cyc 1195-1198. See under (2). 30 L. R. A. 312.