The original petition filed herein alleged that plaintiff, Mary J. Punk, and the defendant Cecil Punir, were the owners, in fee simple, of 120 acres of land in Knox County, as tenants in common, each owning an undivided one-half interest therein; that each of the other two parties defendant was the owner of a deed of trust upon said land, and that the interests of plaintiff and defendant Cecil Punk were held subject to said deeds of trust. Describing the land, the petition prayed for a partition thereof.
It is unnecessary to notice the answers filed to this petition. Subsequently plaintiff, by leave, filed what i§ termed a “supplemental petition,” alleging that the land described in the original petition had been sold by one Ennis, trustee in one of said deeds of trust, at a foreclosure sale, and that the residue of the purchase price, alleged to be about $700, then remained in the hands of said trustee. This petition prayed that the original suit be consolidated with “this cause,” and “the issue of the ownership of said funds, so in the hands of said trustee, be tried and decided in one action;” praying that plain *181 tiff “have judgment as prayed in the original and supplemental petition.”
The record recites that on December 7, 1916, an order of consolidation was made as prayed.
The “second supplemental and amended answer” of defendant Cecil Funk, avers that the land described in the original petition was purchased by him on January 4, 1915, at which time he and plaintiff were man and wife: and that the entire purchase price thereof was paid by him; that in November, 1915, plaintiff brought suit against him for divorce, and in February, 1916, plaintiff was granted a decree of divorce and was allowed suit money and also alimony of $150 out of his estate. This defendant then alleges that the land described in the original petition has been sold under a deed of trust which defendant assumed when he bought the land, and that there remains in the hands of Ennis, the trustee in said deed of trust, the sum of $334.73, as the surplus proceeds of said sale, which the trustee holds subject to the order of the court in this procéeding; that this defendant never received or had in his possession any money belonging to his wife, and she contributed nothing to the purchase of said property; that plaintiff and defendant, having been divorced, could not hold the land as tenants by the entirety, and that defendant, having paid the entire purchase price thereof, is entitled to receive the entire surplus remaining in the hands of the trustee. And said defendant prays that he be declared to be the owner of all of the fund in the hands of the trustee, and that the latter be ordered to pay the same to him.
Ennis, the trustee, entered his appearance and filed an answer in which he stated that he had in his hands $334.73, derived from- the sale of the lands described in the petition; that as to the matters and things alleged in the petitions and answers, he had no knowledge or information sufficient to form a belief; and prayed to be discharged with his costs.
It is unnecessary to further notice the pleadings.
*182 The evidence is that while Cecil Funk and plaintiff were husband and wife the former purchased this land with his own means, plaintiff contributing nothing thereto. The title was acquired from one Roush who conveyed the land by warranty deed to “Cecil E. Funk and Mary J. Funk, his wife,” for the expressed consideration of $6000, subject to two deeds of trust, one a .first deed of trust in favor of an insurance company, for $2600, and the other a second deed of trust, apparently for $1314. Defendant testified: “The amount of the- principal debt secured by the mortgages claimed by me, at purchase, was $3914 and I paid the balance of the purchase price of $6000.00 in cash and I gave a note to Mr. Roush for $300.00.” It appears that plaintiff joined with defendant in the execution of this note, but it does not appear that she contributed anything to the payment thereof.
The evidence shows that plaintiff obtained a decree of divorce from defendant Cecil Funk, as alleged in the latter’s answer; and that subsequent to the filing of plaintiff’s original petition, the second deed of trust was foreclosed and the property sold by the trustee, Ennis, subject to the first deed of trust, and that there remains a surplus in the hands of said trustee of $334.73, which is the bone of this contention.
The trial court, by its decree, finding the facts aforesaid as to the purchase of the property, held that since plaintiff and the defendant Cecil Funk were divorced at the time of bringing this suit, they “do not hold said property by the entirety, and that the defendant Cecil Funk, having paid the entire purchase price for said land, is now, in equity, entitled to receive the entire proceeds derived from the sale of said land.” And it was ordered and decreed that the entire fund in the hands of the trustee be paid to said defendant.
From this judgment plaintiff prosecutes the appeal before us.
No question is raised as to our jurisdiction, and in the state of the record, as shown above, we think that title to real estate is not involved so as to deprive us' of
*183
jurisdiction. [Price v. Blankenship,
The appeal challenges alone the correctness of the decree below upon the facts found. And we regard it as clear that the learned trial judge erred in concluding that defendant Cecil Funk was entitled to the entire fund in controversy. The deed from Roush to “Cecil E. Funk and Mary J. Funk, his wife,” without more, created a tenancy by the entirety. [Moss v. Ardrey,
And there is nothing present tending to rebut or repel such presumption. As an executed gift, by way of provision for his wife, the husband was without power to deprive the wife of her interest in the land. And after divorce, plaintiff’s interest in the land, as a tenant in common with her former husband, was equal to that of the latter.
We are not here concerned with the rule applicable where land is purchased with the money of one person and the title is taken in his name and that of another, the parties being strangers or standing in no special relation to each other. And the view stated above is in no wise in conflict with the rulé of decision that where a husband uses in part his wife’s money to purchase land, *184 without her written consent, and takes the title in the name of himself and wife, the conveyance at the suit of the wife will be held to make the parties cotenants in the proportion that the money contributed by each bears to the purchase price. (See Moss v. Ardrey, supra.) Such act on the part of the husband falls under the ban of the Married Woman’s Acts, and constitutes a fraud upon the wife.
In Darier v. Darier,
Tu Aeby v. Aeby,
The judgment is accordingly reversed and the cause remanded with directions to enter a decree awarding the fund in controversy to appellant and respondent Cecil Funk in equal parts; the cost of this appeal to be taxed against the respondent.