188 Ind. 675 | Ind. | 1919
— Appellees brought a suit against appellants in the trial court to obtain partition of certain real estate described in the complaint and to havé it declared indivisible and sold, and to have the proceeds distributed in accordance with the interests of the several tenants in common. The real estate described consisted of a residence of considerable value located in the city of Muncie, Indiana, the title to which was acquired in the year 1888 by James N. Templer and Susan Templer, his wife, as tenants by the entireties. The record shows that James N. Templer and Susan, his wife, continued to live together as husband and wife until the death of James N. Templer, which occurred on February 3, 1909, and that thereafter Susan Templer, his widow, continued to occupy said premises until her death, which occurred on November 5, 1917. James N. Templer and his wife, Susan, had no children born to them as the fruits of their marriage, but they each had children as the fruits of former marriages.
The plaintiffs in the trial court were the heirs of James N. Templer, and the defendants, who are appellants in this court, claim as the heirs and devisees of Susan Templer. The record further shows that on December 19, 1908, James N. Templer was adjudged by the Delaware Circuit Court to be a person of unsound mind and incapable of managing his own estate, and that such condition of mind was probably permanent. This adjudication was made on a petition filed by John P. Shoemaker, a brother of Susan Templer, which al
The case was tried by the court on a complaint consisting of four paragraphs. The first two paragraphs of the complaint proceed on the theory that the tenancy by entireties existing in James N. Templer and Susan, his wife, was during the lifetime of both of such tenants converted into a tenancy in common, under and pursuant to §§4004, 4005 Burns 1914, Acts 1899 p. 109, and that James N. Templer at the time of his death was the owner as a tenant in common with his wife, Susan, of one-half the real estate described, and that the one-half of which he was so seized descended to plaintiffs as his heirs. The other two paragraphs of the complaint proceed on the theory that §4004, supra, creates a cause of action which, under the provisions of §4005, supra, enables the sane tenant of an estate by entireties, or the guardian of the insane tenant of such an estate, to maintain an action against the cotenant, and, on proof of the essential facts as stated in the act, to obtain an order of court changing and converting the tenancy by the entireties into a tenancy in common, and that on the death of either of the tenants by entireties the right of action created by the statute survives in the heirs of' such deceased tenant, and can be maintained by them against the surviving tenant, or against the heirs of such tenant to whom the real estate has descended.
By its second conclusion of law, the trial court in effect held that the proceeding of the Delaware Circuit Court on the petition of John P. Shoemaker against James N. Templer and the judgment based thereon, by which it was adjudicated that James N. Templer was a person of unsound mind and incapable of managing his estate and that his insanity was probably permanent, had the force and effect of terminating the estate by entireties which had previously existed between James N. Templer and his wife, Susan, in the real estate in controversy as of the date of the entry of such judgment, and that the nature of their tenancy in said real estate was then and thereby changed and converted into a tenancy in common by force of §§4004', 4005 Burns 1914, supra.
Section 4004, supra, provides: “That whenever a husband and wife shall own and hold any real estate as joint tenants or tenants by entireties, and one of them shall have been adjudged a person of unsound mind by a court of competent jurisdiction, and when said insanity is probably permanent,' they shall cease to hold and own said real estate as joint tenants or tenants by entireties, as the case may be, but the title to said real estate shall be owned and held by them as tenants in common.”
Section 4005, supra, provides that: “Said joint tenancy or tenancy by entireties shall not be converted into
Under the law the death of one of the tenants by entireties terminates the estate. When that event occurs the survivor holds the entire estate by virtue of the original grant. The title then held is the same in all respects as though he had been the sole tenant from the time of the grant. It thus appears that the right of action created by the sections of statute cited cannot survive to the heirs of one of the deceased tenants, for the reason that in every instance the tenancy by entireties would cease to exist at the very instant that the right of action would be acquired by the heirs of the deceased tenant. From that time on the surviving tenant would hold the entire estate, and no estate by entireties would be in existence upon which the decree of a court could operate.
Note. — Reported in 125 N. E. 457.