37 391 134 662 135 181

136 662

Geisel v. Taylor et al.

Herr, 8 Ind. 23; The State v. Swarts, 9 Ind. 221; Thompson v. Shaefer, 9 Ind. 500; Gray v. Stiver, 24 Ind. 174.

The judgment is affirmed, at the costs of the appellants.* G. V. Howk, J. H. Stotsenburg, T. M. Brown, and W. W. Tully, for appellants.

D. C. Anthony and W. March, for appellee.

*Petition for a rehearing overruled.

GEISEL V. TAYLOR ET AL.

COUNTY CLERK.-Fees and Salaries.-The clerk is entitled to tax and collect fees "for indexing," "for jury fees," and "for docket fees,” under the fee and salary act of February 21st, 1871.

APPEAL from the Marion Common Pleas.

DOWNEY, J.-This case is supposed to involve the constitutionality of the act of February 21st, 1871, known as the fee and salary law, or some portions of it. It was a motion to correct the taxation of costs. The clerk had charged in the bill of costs these items: "For indexing, twenty-five cents," under and by virtue of the provisions of the nineteenth section; "for jury fee, five dollars," and "for docket fee, two dollars," under and in pursuance of the sixteenth section of the act. The appellant sought to have these items stricken out of the list of fees. The court overruled his motion. He excepted and appealed. We think the court committed no error. There is no difference of opinion among the members of this court as to the right to tax and collect the costs.

The judgment is affirmed, with costs.

A. T. Beck and H. Cole, for appellant.

7. S. Duncan, H. W. Harrington, and C. A. Korbly, for appellees.

Chandler, by Moore, Guardian, v. Cheney.

CHANDLER, by MOORE, Guardian, v. CHENEY.

HUSBAND AND WIFE.-Conveyance.-Estates by Entireties.-A husband and
wife, though not thus described in a deed of conveyance of real estate exe-
cuted to them, take under such deed as tenants by entireties.
SAME.-Tenants by Entireties and Joint Tenants.-Distinction.-The same
difference which existed at common law between joint tenants and tenants by
entireties continues under our statute. In both the title and estate are joint,
and both have the quality of survivorship; but the marked difference between
the two is this: in a joint tenancy, either tenant may convey his share to a
co-tenant, or to a stranger, who thereby becomes tenant in common with the
other co-tenant; while neither tenant by the entirety can convey his or her in-
terest so as to affect their joint use of the property during their joint lives, or
to defeat the right of survivorship upon the death of either of the co-tenants.
There may also be partitions between joint tenants, but not between tenants
by entireties.

SAME.-Execution.-Fraud.-While such an estate exists, no interest in it can be
sold on execution for the debts of the husband or wife, but the conveyance
creating it may be set aside for fraud.

SAME.-Essentials.—From the nature of the estate and the legal relation of the parties, there must be unity of estate, unity of possession, unity of control, and unity in conveying or incumbering it.

SAME.-Mortgage by Husband.-A mortgage upon such an estate executed by the husband alone is void.

APPEAL from the Shelby Circuit Court.

BUSKIRK, J.-This was a proceeding to perpetually enjoin the sale of certain real estate, under and by virtue of a decree of the foreclosure of a mortgage. The complaint alleges, in substance, that Stephen Guile and wife, on the 3d day of September, 1866, conveyed, by general warranty, a certain house and lot in Shelbyville, Indiana, to Eldridge G. Mayhew and Sarah Mayhew; that at the time of the said conveyance, the said Mayhew and Mayhew were husband and wife; that on the 20th day of February, 1867, the said Eldridge G. Mayhew, by his separate deed, mortgaged the said lot to the defendant, Whitfield Chandler, to secure the payment of a note for three hundred and thirty dollars, dated on the 4th day of April, 1865, which mortgage was on the same day recorded in the office of the recorder of said county; that on the 13th day of May, 1867, the said Eld

Chandler, by Moore, Guardian, v. Cheney.

ridge G. Mayhew and Sarah Mayhew, his wife, by a general warranty deed, conveyed the said lot to one Elijah Hopper, Sen., for the sum of seven hundred and fifty dollars; that by several successive conveyances, the plaintiff became the owner of the said property, under and through the deed from Mayhew and wife, made subsequent to the execution of the mortgage by Mayhew to Chandler; that at the October term, 1867, of the Shelby Circuit Court, the said Chandler obtained a decree of the said court, foreclosing the said mortgage, and decreeing the sale of the said property; that the said Chandler had caused to be issued by the clerk of the said court a copy of the said decree, and was proceeding, through the sheriff of said county, to sell the said property, under and by virtue of the said decree, and would do so unless enjoined from so doing; and that the said mortgage executed by the said Mayhew to the said Chandler was illegal and void, for the reason that the said Mayhew and his wife held the said property as tenants by entireties, and that a mortgage or deed executed by one joint tenant by entirety was void.

The prayer of the complaint was for a perpetual injunction enjoining the sale of the said property under the said decree of foreclosure, to quiet the title of the plaintiff thereto, and to remove any cloud that had been cast upon the title of the plaintiff by the existence of the said mortgage and decree of foreclosure.

The appellant demurred to the complaint, upon the ground that it did not contain facts sufficient to constitute a cause of action. The demurrer was overruled, and the appellant excepted.

The appellant then answered in two paragraphs. The first was a denial, and the second in avoidance; but as no point is made upon the answer, we do not deem it necessary to set out the second paragraph thereof.

The appellee replied by a denial of the allegations contained in the second paragraph of the answer. The cause was, by the agreement of the parties, submitted to the court

Chandler, by Moore, Guardian, v. Cheney.

for trial, which resulted in a finding for the plaintiff. A motion for a new trial was made and overruled, and an exception was taken.

The court rendered a decree perpetually enjoining the sale of the said property for the payment of the said decree of foreclosure; that the said judgment of foreclosure as to the said lot should be held of no force or validity; that the title of the said plaintiff in and to the said lot should be quieted; and that any cloud that rested on the title of the plaintiff by reason of the said mortgage and judgment of foreclosure be, and the same was, thereby removed.

The appellant has assigned two errors; first, that the court erred in overruling the demurrer to the complaint; and, second, in refusing a new trial.

The great and leading question in the case is, whether Eldridge G. Mayhew had, at the time he made the mortgage to Chandler, a mortgageable interest in the property in dispute, which he could mortgage by his separate deed. The solution of this question depends upon the nature and character of the estate which was vested in Eldridge G. Mayhew and Sarah Mayhew, by the deed from Guile and wife. If they held the property as tenants in common, there can be no doubt as to the validity of the mortgage so far as it affected the interest of Eldridge G. Mayhew, the mortgagor. If they held the property as tenants by entireties, then the mortgage will be void, unless the husband has the right to incumber by his separate deed property held by him and his wife as tenants by entireties.

It is maintained by the appellant that Eldridge G. Mayhew and Sarah Mayhew were not seized of the said property as tenants by entireties, for the reason that they are not described as husband and wife in the deed to them, from Guile and wife.

It is maintained by the appellee that the character of the estate does not depend upon the manner in which the grantees are described in the deed, but upon the fact that they were husband and wife at the time the deed was made.

Chandler, by Moore, Guardian, v. Cheney.

It is also maintained by the appellant that, conceding that Mayhew and his wife were seized as joint tenants by entireties the husband can convey, lease, or mortgage the property by a separate instrument without his wife joining

with him.

On the other hand, it is maintained by the appellee, that whatever may have been the rule at common law, under our statute the husband can neither lease, mortgage, nor convey property held by him and his wife as tenants by entireties, unless his wife joins him in the execution of the lease, mortgage, or deed.

The first question that is presented for our decision is, whether it is necessary to the creation of an estate by entireties, that the persons to whom the conveyance is made should be described in the deed as husband and wife. The learned counsel for appellant, in support of their position, that it must affirmatively appear in the deed that the grantees are husband and wife, have referred us to I Washburn Real Prop. 577, where it is said:

"A still more peculiar joint estate is that which belongs. to a husband and wife, where the same is conveyed to them as such." It is claimed that the words "as such" render it necessary for it to be averred and shown upon the face of the deed that the grantees were husband and wife. The above authority seems to support the view taken by appellant, but we are of the opinion that it is in conflict with the very decided weight of authority. But whatever may be the rule at common law, we are of the opinion that under our statute it is not necessary that such fact should be stated in the deed. Sections 7 and 8 of the act concerning conveyances, I G. & H. 259, read as follows:

"Sec. 7. All conveyances and devises of lands, 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,