Estates by the entirety are creatures of the common law created by legal fiction and based wholly on the common-law doctrine that the husband and wife are one, and, therefore, there is but one estate and, in contemplation of law, but one person owning the whole. Complications arise when the conveyance of land runs to H and W and a third named person, or to H and W plus a second couple, H and W. The historical unity of husband and wife is apparent in the tendency of courts to award each couple only a single share under such a conveyance.
The wife, her husband, and his mother were named buyers in a land sale contract. In anticipation of their divorce, the wife and her husband deeded their interest to the father-inlaw. The wife brought an action for partition following a divorce decree awarding all title and interest in the property to the wife. The mother-inlaw then deeded her interest to the father-inlaw who, in turn, filed a pleading to be decreed sole owner. The court on appeal affirmed the trial court's judgment but modified the division.
Whether there is an equitable interest in property purchased by husband and wife?
The court held that (1) the wife and her husband had an equitable interest in the property; (2) the conveyance by deed of their interest to the father-inlaw was void as it was obtained by fraud to hinder or prevent the wife's recovery of her husband's equitable interest in the property in the divorce suit; and (3) their interest under the contract was taken as tenants by the entirety. Accordingly, by virtue of the divorce decree awarding the wife all of her husband's interest, she held an undivided one-half equitable interest under the land sale contract. As the action was not tried as a suit in partition, the wife was not entitled to attorney fees.