Opinion
No. 17,565.
Filed March 10, 1947.
1. HUSBAND AND WIFE — Tenancy by Entireties — Joint Right to Use and Enjoyment During Existence of Marriage. — Neither husband nor wife has a separate interest in real estate held by the entirety, but the property belongs as much to the one as the other, and hence a wife has a joint right with the husband to its use and enjoyment during the existence of the marriage. p. 278.
2. HUSBAND AND WIFE — Tenancy by Entireties — Unity of Interest. — Where real estate is held by the entirety, there is unity of estate, unity in conveying and encumbering it, unity of possession and unity of control. p. 278.
3. GUARDIAN AND WARD — Actions — Parties — Possession of Real Estate Held by Entirety — Wife or Guardian Necessary Party. — In an action for possession of real estate held by the entirety, the wife or her guardian is a necessary party plaintiff, and if the wife is under guardianship, the reason for the guardianship is immaterial. p. 279.
4. INFANTS — Actions — Capacity to Sue. — An infant is not without capacity to sue because of such infancy. p. 279.
5. GUARDIAN AND WARD — Actions — Parties — Guardian a Proper Party. — A guardian, regardless of the reason for the guardianship, is charged with the management of the ward's estate, and therefore is a proper party in an action concerning it. p. 279.
From the De Kalb Circuit Court; William P. Endicott, Judge.
Action by Henry Yarde against Ralph Yarde for possession of real estate. From a judgment for defendant, entered after his demurrer to the complaint was sustained and plaintiff refused to plead further, plaintiff appealed.
Affirmed. By the court in banc.
Atkinson Sanders, of Auburn, for appellant.
Mountz Mountz, of Garrett, for appellee.
Appellant and his wife are the owners by the entirety of certain real estate in DeKalb County, Indiana. This action is for possession of that real estate. A demurrer to the complaint for defect of parties was sustained. Appellant refused to plead further and this appeal is from the judgment that followed.
The complaint alleges that appellant's wife is under guardianship but does not disclose the reason. Appellee contends that the wife or her guardian is a necessary party either plaintiff or defendant.
Appellant says that the statute (§ 38-102, Burns' 1933) emancipating a married woman so far as control of her property is concerned refers only to her separate property and the husband still has his common law right of control over real estate held by the entirety.
We cannot agree with this contention. Whatever may have been the common law doctrine, the rule in Indiana is well established that neither husband nor wife have a separate interest 1, 2. in real estate held by the entirety. There is unity of estate, unity in conveying and encumbering it, unity of possession and unity of control. The property belongs as much to the wife as to the husband and she has a joint right with him to its use and enjoyment during the existence of the marriage. Davis v. Clark (1866), 26 Ind. 424; Chandler, by Moore, Guardian v. Cheney (1871), 37 Ind. 391; Patton, Adm'r. v. Rankin (1879), 68 Ind. 245; Carver v. Smith (1883), 90 Ind. 222; Dyer v. Eldridge (1893), 136 Ind. 654, 36 N.E. 522; Sharpe v. Baker (1912), 51 Ind. App. 547, 96 N.E. 627, 99 N.E. 44.
Under the statute all who are united in interest must be joined as plaintiffs or defendants. §§ 2-213, 2-219, 2-220, Burns' 1946 Replacement. But appellant says that his wife has no 3. capacity to sue and that her guardian is not a proper party.
The record does not disclose the reason for the wife's guardianship and it is not material so far as the decision of this appeal is concerned. If she is an infant she is not 4, 5. thereby without capacity to sue. § 2-206, Burns' 1946 Replacement. And regardless of the reason for the guardianship, her guardian is charged with the management of her estate and therefore is a proper party in an action concerning it. §§ 8-111, 8-207, 8-302, Burns' 1933; Boruff v. Stipp (1890), 126 Ind. 32, 25 N.E. 865; Kinsley, Guardian v. Kinsley (1897), 150 Ind. 67, 49 N.E. 819; Meiser, Guardian v. Smith (1891), 2 Ind. App. 37, 27 N.E. 871.
Judgment affirmed.
NOTE. — Reported in 71 N.E.2d 625.