The second paragraph is the same as the first, in substantial averments, except that in this paragraph the appellees set out as a part thereof a copy of the deed under which they claim title to said real estate as such tenants by entireties.
The granting clause of the deed is as follows: "This indenture witnesseth, that Lemuel Wiggins and Mary Wiggins, his wife of Randolph County, in the State of Indiana, convey and warrant to Daniel S. Wiggins and Laura Belle Wiggins, his wife, in joint tenancy," etc.
Appellants separately and severally demurred to each paragraph of the complaint, and their demurrers were overruled by the court, to which the appellants excepted, and, refusing to answer the complaint, judgment was rendered in favor of appellees on said demurrers.
Appellants appeal, assigning as errors the overruling of said demurrers, and urge that the appellees under the deed took as joint tenants, and hence that the husband's interest is subject to levy and sale upon execution. A joint tenancy is an estate held by two or more persons jointly, so that during the lives of all they are equally entitled to the enjoyment of the land or its equivalent in rents and profits, but, upon the death of one his share vests in the survivor or survivors until there be but one survivor, when the estate becomes one in severalty in him and descends to his heirs upon his death.
It must always arise by purchase, and cannot be created by descent. Such estates may be created in fee, for life, for years, or even in remainder. But the estate held by each tenant must be alike. Joint tenancy may be destroyed by anything which destroys the unity of title. Our law aims to prevent their creation and they cannot arise, except by the instrument providing for such tenancy. Griffin v. Lynch, 16 Ind. 396.
The 9th Am. and Eng. Encyc. of Law, 850, says: "Husband and wife are, at common law, one person, so that when realty or personalty vests in them both equally . . . they take as one person, they take but one estate as a corporation would take. In the case of realty, they are seized not per my et per tout, as joint tenants are, but simply per tout; both are seized of the whole, and each being seized of the entirety, they are called tenants by the entirety, and the estate is an estate by entireties. . . . Estates by entireties may be created by will, by instrument of gift or purchase, and even by inheritance. Each tenant is seized of the whole, the estate is inseverable - cannot be partitioned; neither husband nor wife can alone affect the inheritance, the survivor's right to the whole."
This tenancy has been spoken of as "that peculiar estate which arises upon the conveyance of lands to two persons who are, at the time, husband and wife, commonly called estates by entirety." As to the general features of estates by entireties there is little room for controversy, and there is none between counsel. Our statute re-enacts the common law. Arnold v. Arnold, 30 Ind. 305; Davis v. Clark, 26 Ind. 424. * * *
Where a contrary intention is clearly expressed in the deed, a different rule obtains.
'A husband and wife may take real estate as joint tenants or tenants in common, if the instrument creating the title use apt words for the purpose." 1 Preston on Estates, 132; 2 Blackstone's Com., Sharswood's note; 4 Kent's Com., side page 363; 1 Bishop on Married Women; Freeman on Cotenancy, § 72; Fladung v. Rose, 58 Md. 13 (24).
And in case of devises and conveyances to husband and wife together, though it has been said that they can take only as tenants by entireties, the prevailing rule is that, if the instrument expressly so provides, they may take as joint tenants or tenants in common." Stewart on Husband and Wife, §§ 307-310; Tiedeman on Real Property, § 244.
'And as by common law it was competent to make husband and wife tenants in common by proper words in the deed or devise,"
So it seems that husband and wife may, by express words, be made tenants in common by gift to them during coverture. Mc-Dermott v. French, 15 N. J. Eq. 80. * * *
If, as contended by appellees, the rule prevails that the same words which, if the grantees were unmarried, would have constituted them joint tenants, will, they being husband and wife, make them tenants by entireties, then it would result as a logical conclusion that husband and wife cannot be joint tenants. Because, by this rule, words, however apt or appropriate to create a joint tenancy, would, in a conveyance to husband and wife, result in an estate by entireties - joint tenancy would be superseded or put in abeyance by the estate created by law - tenancy by entirety.
The result of such reasoning would be to destroy the contractual power of the parties where this relationship between the grantees is shown to exist. Any other process of reasoning would carry the rule too far and we must hold it modified to the extent here indicated. Husband and wife, notwithstanding tenancies by entirety exist as they did under the common law, may take and hold lands for life, in joint tenancy, or in common, if appropriate language be expressed in the deed or will creating it, and we know of no more apt terms to create a joint tenancy in the grantees in this estate than the expression "convey and warrant to Daniel S. Wiggins and Laura Belle Wiggins in joint tenancy."
These words appear in the granting clause of the deed conveying the land in question, and the estate accepted and held by the grantees is thereby limited, and they hold not by entireties but in joint tenancy. A joint tenant's interest in property is subject to execution. Freeman on Ex., 125.
Judgment reversed, with instructions to the Circuit Court to sustain the demurrer to each paragraph of the complaint.
1 Conference Reports (N. C), 291. - 1801. [Reported herein at p. 947.]