## Facts

- On August 30, 1984, Harold and Juanita Carlton conveyed residential real estate by warranty deed to Joan L. Cunningham and Warren R. Hastings “as joint tenants with the right of survivorship, and NOT as tenants in common.”
- Cunningham and Hastings were not married and lived together on the property while they were in a relationship.
- Hastings supplied the entire purchase price (about $45,000) from his own funds.
- After the relationship ended, Hastings took sole possession of the property.
- Cunningham filed an action seeking partition of the real estate and an equal division of the proceeds.
- The trial court found the property could not be partitioned in kind and ordered a sale under Indiana’s partition statute (Ind. Code § 32-4-5-4).
- The trial court ordered distribution of the sale proceeds as follows: (1) payment of costs of the partition proceedings; (2) the next $45,000 to Hastings as a “refund” of the purchase price he paid; and (3) the remainder divided equally between Cunningham and Hastings.
- Cunningham appealed only the portion of the judgment awarding Hastings the $45,000 credit.

## Issues

1. When real estate is titled in joint tenancy with right of survivorship, may a court ordering a partition sale credit one joint tenant for having paid the entire purchase price before dividing the remaining proceeds equally?

## Decision

- The Indiana Court of Appeals reversed the portion of the judgment awarding Hastings a $45,000 credit and remanded.
- The court held that because Cunningham and Hastings held title as joint tenants, each held an equal interest as a matter of law, and the net proceeds of a partition sale must be divided equally.
- The trial court’s effort to “equalize” the result by reimbursing Hastings for his purchase-money contribution was contrary to the legal consequences of the joint-tenancy estate chosen in the deed.
- The court declined to consider additional reimbursement theories (such as credits for expenses) to the extent they were not properly raised and litigated in the trial court.

## Legal Principles

- A deed that expressly creates a joint tenancy with right of survivorship creates equal ownership interests for each joint tenant, with each holding an undivided interest in the whole.
- In a partition by sale of property held in joint tenancy, the net sale proceeds (after allowable costs) are divided equally among the joint tenants.
- A trial court may not redistribute partition-sale proceeds to reimburse one joint tenant for unequal purchase-money contributions where the parties took title as joint tenants; doing so effectively treats the estate like a tenancy in common with unequal shares, contrary to the deed.
- Any claim for credits, offsets, or reimbursements must be properly pleaded and presented in the trial court; issues not preserved are generally waived on appeal.
- Where an appellant challenges a judgment that denied the full relief requested, the appellant must show the judgment is contrary to law.

## Conclusion

Because the deed plainly stated that Cunningham and Hastings took the property as joint tenants with right of survivorship and not as tenants in common, the trial court could not award Hastings a first-dollar $45,000 purchase-price credit in the partition distribution; after payment of partition costs, the proceeds had to be split one-half to Cunningham and one-half to Hastings, and any unpreserved expense-reimbursement claims could not be added on appeal.


Cunningham v. Hastings, 556 N.E.2d 12 (1990)