Brown v. Brown

Decided January 25, 1893

Indiana Supreme Court · decided 1893-01-25

Deed. — jReal Estate. — Conveyance to Husband and Wife. — Provision Against Estate in Entirety. — Tenancy in Common.- — Where a deed to a husband and wife contains the following: “Each of the above grantees having contributed equally in the purchase of the above-described real estate, it is the express understanding and agreement that said real estate shall be held by them in common, and not in joint tenancy,” the quoted provision clearly being intended to make the husband and wife tenants in common, and not in the entirety, effect will be given to the intent of the deed. Beal Estate. — Husband and Wife. — Conveyance to. — Words Limiting Estate. —Tenancy in Common. — Tenancy in Entirety. — Where a conveyance is made to a husband and wife without any words limiting the estate, they will hold it as tenants in entirety, but where there are words in the deed so limiting the estate conveyed that it appears that the grantor intended that the grantees should hold by moieties, such intention will prevail. Appeal. — Error Assigned on Pleading Alone. — Transcript.—■ What it Should Contain. — Where error is predicated upon a ruling on a pleading alone, the transcript of the record need not contain any of the proceedings after the ruling complained of. Pleading. — Partition.—Sufficiency of Complaint. — Present Interest. — Failure to Allege. — A complaint for partition of land, which does not allege a present interest in the land, is insufficient.

Relies on Fowler v. . the New York Indemnity Insurance Company · Wintermute v. Reese

Good law ✅— No negative treatment on recordhow we know

Decided 1893-01-25

How this case has been cited

Cited by 23 later decisions — most recently July 1990

19 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1On Petition for a Rehearing.

Hackney, J.

¶2-On petition for a rehearing, the appellants urge us to deny the authority of Wintermute v. Reese, 84 Ind. 308. We are not inclined to depart from the rule there affirmed, nor can we believe that it is not applicable to the complaint in this case. To allege an ownership in lands at a period mouths before the suit, is a fact which suggests ownership at the time partition is asked, but it is a fact which does not necessarily imply an ownership at the time partition is sought.

¶3“A fact not necessarily implied, although inferable, is not sufficiently alleged, by alleging the fact which suggests it.” Abbott’s Trial Brief, section 51; Fowler v. New York, etc., Ins. Co., 26 N. Y. 422; Williams v. North Am. Ins. Co., 9 How. Pr. (N. Y.) 365; Magauran v. Tiffany, 62 How. Pr. (N. Y.) 251. The fact that appellants once owned does not necessarily imply a present ownership.

¶4The petition is overruled.