45 Ind. 479 | Ind. | 1874
This was an action by the appellants against the appellees, to obtain partition of the real estate described in the complaint. The complaint sets forth the interests of the parties, together with the deed upon which the appellants in part rely for their title. A demurrer was sustained to the complaint below, and this ruling is assigned for error and presents the only question arising in the record.
The complaint shows that in the year 1847, one Thomas Nicholson was the owner in fee of the land in controversy; that on the 24th day of March, 1847, he conveyed by deed
As the questions in the case depend almost entirely upon the construction which ought to be placed upon the deed, from Thomas Nicholson to Peter and Thomas B. A. Nicholson, we set out a copy of it, which is as follows :
“ Be it known to all men that I," Thomas Nicholson, of the State of Indiana, Washington county, and in Brown, township, and in the year of our Lord one thousand eight, hundred and forty-seven, being at home, in my right mind, and in good health, and without any coevshun from any person or fraudulently to withhold the right from any one, do hereby deed and convey unto my sons, Peter and Thomas Bramwell A. Nicholson, all my personal and real estate, except that-portion coming from Childers, which is to be divided with, the other brothers and sisters if I should dye before it is-collected, but all the rest of the estate I do hereby convey unto Peter and Thomas B. A. Nicholson, upon the condition of the maintenance through life, and burial after death, of my boddy, which maintenance is to cosist of suitable clothing for public and private life and ordinary boarding, the plat of ground,” etc. (here follows description of the real, estate). “ To have and to hold the same against all claim.*481 or claims whatever and singular, the title, interest,and claim in and unto said Peter and Thomas B. A. Nicholson forever. In testimony whereof we set our hands and seals, this twenty-fourth day of March, one thousand eight hundred and forty-seven. Thomas Nicholson, [Seal.]”
The counsel for appellants, in their brief, admit that Peter and Thomas B. A. Nicholson fully performed the conditions named .in the deed and paid the consideration agreed upon for the land, but they contend that the deed only conveyed to them an estate for life; that the fee remained in the grantor and on his death descended to his heirs at law; that the grantees held the estate or interest conveyed by such deed as tenants in common for life, and upon the death of Peter Nicholson, the title to one undivided half descended to the plaintiffs as the heirs of Thomas Nicholson, and that they have a right to partition of the said real estate; and that all the interest which appellees have is the life estate during the life of Thomas B. A. Nicholson and the interest in fee which Peter and Thomas B. A. Nicholson inherited from their father, and which was conveyed by their deed to Peter Caress. In other words, the rights of the appellants are attempted to be maintained upon the ground that as the deed from Thomas to Peter and Thomas B. A. Nicholson did not contain the word heirs or any equivalent words, it only conveyed an estate for life.
Counsel for appellees admit that such was the rule at common law and under the statutes of this State prior to the revision of 1843, but it is earnestly contended that, under the revised statutes of 1843 and 1852, a fee can be conveyed without the use of the word “ heirs” or any equivalent words, and that the deed in question conveyed to the grantees an estate in fee simple. It is further insisted, that, conceding that the deed only conveyed an estate for life, ■ the grantees held the same as joint tenants, and upon the death of Peter his right survived to Thomas B. A. Nicholson, and that the life estate will not terminate until the déath of Thomas-
“ 5 3. The origin of the use of ‘ heirs ’ in creating an estate in fee by grant has already been explained, though it has obviously become a mere arbitrary rule. Still, unless changed by statute, it is as imperative, as a rule of law, now as ever. No synonym will supply its place. Even a grant to one and his ‘heir,’ will give him only a life estate, or to one ‘or his heirs,’ or to one ‘ and his heirs during the life of another,’ or to one ‘ forever,’ or to one ‘ and his assigns forever,’ and the words ‘ forever,’or ‘ assigns,’have no effect.at this day in limiting or defining what estate is granted. So to one < and his successors,’ or to one, ‘ his successors and assigns,’ is a life estate only, although coupled with a power to sell and convey a fee, or to one and his ‘ seed,’ or ‘his offspring,’ or to one ‘and the issue of his body,’ or to one in ‘fee simple,’ or to one, ‘ his executors, administrators and assigns.’ No circumlocution has ever been held sufficient to create a fee.” See Nelson v. Davis, 35 Ind. 474.
The case of Kenworthy v. Tullis, 3 Ind. 96, supports the doctrine above laid down. The cases of Neilson v. Lagow, 4 Ind. 607, Wickersham v. Bills, 8 Ind. 387, and Gould v. Lamb, 11 Met. 84, are clearly distinguishable from the present case. In such cases, the deeds were deeds in trust, and it was held that words of reference to other deeds and instruments which contained words of inheritance would create a fee without the use of the word “heirs” in the trust deeds.
The deed in question was one of bargain and sale. It was executed in 1847. The common law rule above stated was in force at the time of its execution and must govern in its construction. The revised statutes, of 1843 did not change the rule as it existed at common law. The rule was changed by the revision of 185 2. It is provided, by the fourteenth sec
We are very clearly of opinion that the deed in question did not convey to the grantees an estate of inheritance, but only an estate for life.
We proceed to inquire whether such estate was duringthe life of the grantor or grantees. It is a settled rule, that in construing the language of a grant, that construction is to be given which is most favorable to the grantee. Where a grant is made to one with no other words of limitation, he will be entitled to an estate during his own life, if the estate of the grantor will allow him to convey such estate. To create an estate for the life of the grantor or Tor the life of another than the grantee, words indicating such purpose must be used. 1 Washb. Real Prop. 102, 103.
In the present case, the grantor, at the date of the deed, was the owner in fee of the land in question, and it was conveyed to the grantees without words of limitation, and it results that such conveyance created an estate for the lives of the grantees.
This leaves for our decision the question whether the grantees in the deed in question held the estate created thereby as tenants in common or as joint tenants. At the date of the deed, there was in existence the following sections of the revision of 1843 :
“ Sec. 18. All conveyances and devises of land, 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 shall 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 instru*484 ment, that it was intended to create an estate in joint tenancy.
" Sec. 19. The preceding section shall not apply to mortgages nor to conveyances in trust, n'or when made to husband and wife; and every estate vested in executors, or trustees as such, shall be held by them in joint tenancy.” R. S. 1843, p. 417.
Sections 7 and 8 of the act of 1852 in relation to conveyances are exact copies of sections 18 and 19 above quoted from the revision of 1843. This court, in Chandler v. Cheney, 37 Ind. 391, in speaking of sections 7 and 8, uses, this language:
"To create a joint tenancy, under the above sections,, between persons who are not husband and wife, it is necessary that the intention shall be expressly declared in the instrument, or it must manifestly appear from the tenor of the instrument.”
It should be observed that there are two clauses to the latter portion of section 18. In the first clause, the intention is to be expressed in the instrument, while in the■ other the intention is to be gathered from the tenor of the-instrument. By the word "tenor” is meant the exact words-, of the instrument. We think the true construction of the-section is, that all conveyances and devises of land or of any-interest therein, to two or more persons, with the exception! stated, shall be construed to create estates in common, and' not in joint tenancy, unless it shall be expressed therein that the grantees or devisees shall hold the same in joint tenancy,, or it shall appear from what is expressed in the instrument that it was intended to create an estate in joint tenancy.. The purpose to create a joint tenancy must appear from the-instrument in one or the other of the modes above indicated.. We cannot look to the circumstances surrounding the grantor ánd attendant upon the execution of the instrument, to ascertain his intention. The intention must appear from an express declaration in the instrument that the grantees or devisees shall hold as joint tenants, or from the words used
The deed from Peter and Thomas B. A. Nicholson to Peter Caress is not set out in the record, and we are unable to determine its character from the averments in the complaint. The only averment in the complaint on this point is, that Peter and Thomas B. A. Nicholson conveyed their interest in said lands to Peter Caress. The inference to be drawn from the language used is, that they only purported to convey such interest as they possessed, and if such is the case the deed would not operate to pass an after-acquired title. But on this point we decide nothing, as the appellees will have the opportunity of setting up their title by answer in the court below.
The conveyance from Thomas Nicholson, deceased, vested in Thomas B. A. Nicholson an estate for life in one undivided half of the premises in dispute, and this estate continues and will continue during his life, and he will hold such estate as a tenant in common with the other owners. In a joint tenancy, either tenant may convey his share to a co-tenant or even to a stranger, which conveyance severs the joint tenancy, and where the conveyance is to a co-joint tenant he becomes the ownér of the entire estate, and where the conveyance is to a stranger, he becomes a tenant in common with the other co-tenant. Chandler v. Cheney, 37 Ind. 371. The death of one joint tenant terminates the joint tenancy, but the share of the one who dies does not descend to and vest in his heirs at law, but under the common law doctrine of survivorship, which is in force in this State, whenever a joint tenancy is created under and in pursuance of our statute, his share would survive to and vest in his former co-tenant, who would hold the entire estate. . So, if the deed in question had created a joint tenancy for life, the share of Peter upon his death would have survived to and vested in his co-tenant, who would have held the entire estate during his life, but as the grantees of such deed held the estate for
In our opinion, the complaint was good, and the court erred in sustaining the demurrer to it.
The judgment is reversed, with costs; and the cause is remanded, with directions to the court below to overrule the demurrer to the complaint, and for further proceedings in accordance with this opinion.