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Law School Case Brief

Underwood v. Bunger - 70 N.E.3d 338 (Ind. 2017)


An undivided interest is merely an interest held under the same title by two or more persons, whether their rights are equal or unequal in value or quantity. A property interest held with other parties as tenants in common is an undivided interest. It is the general rule that the possession of one tenant in common is the possession of all, and for the common benefit of all.


On July 25, 2002, the owner of real property located near the Indiana University campus in Bloomington (Property) executed a warranty deed (Deed) to three grantees: Cheryl Underwood, Kenneth Kinney, and Judith Fulford. Kinney (Husband),  now deceased, and Fulford (Wife) were married when the Property was conveyed and remained married at Husband's death. In a separate case in June 2014, a Monroe Circuit Court entered a six-figure damages judgment against Husband and Underwood, and in favor of Sheree Demming, Underwood's former employer. The judgment was affirmed on appeal, and the Demming Judgment became a lien on the Property.

Underwood filed suit asking the court to partition and sell the Property and distribute the proceeds. Underwood argued that she, Husband, and Wife all owned the Property as tenants in common and stated that she no longer wants to own the Property in common. The Estate of the Husband moved to dismiss Underwood's petition, arguing that Underwood's claim failed because it presupposed the Estate has an interest in the Property, and seeking summary judgment. The trial court agreed with the Estate and Demming and granted their respective motions. The court held that the judgment lien created by the Demming Judgment did not attach to the share of the real estate now owned by Wife because the judgment was entered against only Husband. Thus, the court concluded that Demming's lien applied against Underwood's one-half interest in the Property but not Wife's interest. On appeal, the Court of Appeals affirmed. The case was appealed.


Was the grant of summary judgment in favor of the Husband's Estate proper?




The Supreme Court of Indiana held that in an action for partition of property, the trial court erred by granting summary judgment because the deed was not clear and unambiguous in creating an estate by the entireties. The presumption was rebutted by the deed's granting clause which established the parties' intention to create a tenancy in common. The judgment was reversed and the case remanded.

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