Nelson v. Hotchkiss

• Citation: 601 S.W.2d 14
• Decision Date: 15 July 1980
• Docket Number: No. 61858,61858
• Parties: Irma E. NELSON, Respondent, v. Dorothy A. HOTCHKISS, Appellant.
• Court: United States State Supreme Court of Missouri

Page 14

601 S.W.2d 14

Irma E. NELSON, Respondent, v. Dorothy A. HOTCHKISS, Appellant.

No. 61858.

Supreme Court of Missouri, En Banc.

July 15, 1980.

David L. Young, Sullivan & Young, P. C., Kansas City, for appellant.

Morran D. Harris, Osceola, for respondent.

WELLIVER, Judge.

Appellant seeks review of an order partitioning interests in land, and assigns error in the fractional division of interests in the land and in the amount of the award of attorney's fees ordered by the trial court. The case was transferred after opinion from the Court of Appeals, Southern District, and we decide the case as though on original appeal. Mo. Const. art. V, § 10. Substantial portions of the opinion of the court of appeals are used without benefit of quotation marks. We reverse the judgment of the trial court as to the interests of the parties in the property and the net proceeds of the sale, and affirm the judgment of the trial court as to the award of attorney's fees. The case is remanded with directions to enter judgment that appellant receive three-fourths of the net proceeds of the partition sale and that respondent receive one-fourth of the net proceeds.

Appellant and respondent are sisters. By deed, dated March 25, 1969, they and their then husbands took title to the farm property in question. The deed described the grantees as "ROBERT A. NELSON and IRMA E. NELSON, husband and wife; and HERBERT H. HOTCHKISS and DOROTHY A. HOTCHKISS, husband and wife; all as joint tenants with right of survivorship in all four, and not as tenants in common." There was no evidence of the intentions of the parties concerning the estates acquired in 1969, or of the circumstances surrounding the preparation of the deed. On January 13, 1975, the marriage of the Nelsons was dissolved. The court approved, incorporated into its judgment, and ordered the Nelsons to perform the terms of, a separation agreement which the Nelsons filed as part of their joint petition for dissolution of marriage. That separation agreement recited "(t)hat at the time of the aforesaid separation, the parties hereto as husband and wife were the owners of a one-half (1/2) undivided interest in" the real estate which is the subject of this litigation. The separation agreement provided that the property: "shall remain the joint property of the parties hereto for a period of two (2) years," and granted respondent "the exclusive option of purchasing of Robert his interest in their joint and mutual one-half (1/2) undivided interest in said farm" for a fixed consideration. The Nelsons apparently intended that after the dissolution each of them would have an undivided one-fourth interest in the property. On December 20, 1976, Robert A. Nelson conveyed his interest in the property to appellant and her husband. On February 1, 1977, Herbert Hotchkiss died.

On August 18, 1977, respondent filed a petition seeking partition and sale of the property involved, and the distribution of the net proceeds to the parties according to their respective interests. In a decree filed on November 28, 1977, the trial court ordered the property partitioned and sold with the net proceeds to be distributed as the court would subsequently direct. On January 27, 1978, the trial court entered an order which found that although the conveyance by Robert Nelson of the one-fourth interest was prior to the termination of Irma Nelson's two-year option provided in the separation agreement, the transfer was made with her consent and therefore was a valid conveyance. The court held that Robert Nelson's conveyance to the Hotchkisses terminated the joint tenancy as to that one-fourth interest in the property but that the remaining three-fourths interest "remained in joint tenancy with the other three original grantees." The court did not consider whether the language of the 1969 deed was sufficient to negate the creation of a tenancy by the entirety between each husband and wife. The court held that the respective interests of the parties were as follows: "Five-eighths interest is vested in Dorothy A. Hotchkiss and three-eighths interest is vested in Irma E. Nelson." The trial court denied appellant's motion for new trial on April 3, 1978, and appellant filed notice of appeal on April 5, 1978.

In an opinion filed November 14, 1979, the Court of Appeals, Southern District, held that the deed of March 25, 1969, created a tenancy by the entirety in each married couple and that "(e)ach entirety held as joint tenant with the other entirety." The court of appeals found that the language of the 1969 deed "all as joint tenants with right of survivorship in all four, and not as tenants in common," was not sufficient to negate the creation of a tenancy by the entirety in each of the couples. The court of appeals thus agreed with appellant's contention that when her husband died she continued to hold the one-half interest that she and her husband had owned as tenants by the entirety under the original 1969 deed. It was not disputed that the one-fourth interest acquired by appellant and her husband from Robert Nelson was held as tenants by the entirety. Consequently, the court of appeals held that appellant had a three-fourths interest in the property and in the net proceeds of the sale and that respondent had a one-fourth interest.

Respondent's motion for rehearing or transfer to this court was overruled by the court of appeals on December 6, 1979. On December 19, 1979, respondent filed a motion for transfer in this Court, alleging that the case involved a question of general interest and importance, and that the decision of the court of appeals conflicts with our decision in Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295, 161 A.L.R. 450 (1945). On January 15, 1980, we ordered the case transferred to this Court.

I

In Missouri, as at common law, a conveyance to a husband and wife as joint grantees ordinarily creates a tenancy by the entirety. Armack's Estate v. State, 561 S.W.2d 109, 111 (Mo. banc 1978); Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295, 297, 161 A.L.R. 450, 453 (1945). In Hall v. Stephens, 65 Mo. 670 (1877), the common law principles governing conveyances to a husband and wife were explained as follows:

Husband and wife, at common law, to whom a grant or devise was made took per tout et non per. my, and the survivor took the whole. 1 Bright Husb. and Wife, 25, and cases cited. This peculiar result arose from the legal identity of husband and wife, both being regarded as one person. . . .

And when husband and wife are co-grantees or co-devisees with a third person, the last named takes one moiety and the husband and wife the other. 1 Bright H. & W. 27; Litt. § 291. If there are two other persons co-grantees or co-devisees, besides husband and wife, then the subject matter of the grant or devise is vested one-third in the husband and wife, and the remaining two-thirds in the other persons in equal proportions, and so on, in accordance with the number of persons entitled; the husband and wife always representing a single unit or integer of legal identity. In the case before us, as there were six children at the death of the testator, the husband and wife became together seized of one-seventh of the land devised. Barber v. Harris, 15 Wend. 615 (1836).

65 Mo. at 676-77. See Merrill Lynch, Pierce, Fenner and Smith, Inc. v. Shackelford, 591 S.W.2d 210, 213 (Mo.App.1979).

The rule is well established that when a husband and wife take title to real property jointly with a third person the husband and wife take one share in a tenancy by the entirety and the third person holds the other share as a tenant in common or joint tenant with the married couple, unless a clear expression of intent not to create a tenancy by the entirety is shown. ¹ Dennis v. Dennis, 152 Ark. 187, 238 S.W. 15, 17 (1922); Daniel v. Wright, 352 F.Supp. 1, 4 (D.D.C.1972); Winchester v. Wells, 265 F.2d 405, 407 (5th Cir. 1959); West Chicago Park Commissioners v. Coleman, 108 Ill. 591, 598 (1884); Hulett v. Inlow, 57 Ind. 412, 414 (1887); Anderson v. Tannehill, 42 Ind. 141, 147 (1873); Kolker v. Gorn, 193 Md. 391, 67 A.2d 258, 261 (1949); Fekkes v. Hughes, 354 Mass. 303, 237 N.E.2d 19, 20 (1968); Fulton v. Katsowney, 342 Mass. 503, 174 N.E.2d 366, 367 (1961); Fullagar v. Stockdale, 138 Mich. 363, 101 N.W. 576, 578 (1904); Hall v. Stephens, 65 Mo. 670, 676-77 (1877); Mosser v. Dolsay, 132 N.J.Eq. 121, 27 A.2d 155, 157 (1942); Platt v. Platt, 93 N.J.Eq. 395, 116 A. 326, 326 (1922); Kurpiel v. Kurpiel, 50 Misc.2d 604, 271 N.Y.S.2d 114, 116 (1966); In re Buttonow, 49 Misc.2d 445, 267 N.Y.S.2d 740, 743 (1966); Bartholomew v. Marshall, 257 App.Div. 1060, 13 N.Y.S.2d 568, 569 (1939); Price v. Pestka, 54 App.Div. 59, 66 N.Y.S. 297, 298 (1900); Barber v. Harris, 15 Wend. 615, 617 (1836); Hampton v. Wheeler, 99 N.C. 222, 6 S.E. 236, 238 (1888); Adamson v. Adamson, 273 Or. 382, 541 P.2d 460, 466 (banc 1975); Margarite v. Ewald, 381 A.2d 480, 482 (Pa.Super.1977); Wally v. Lehr, 2 Pa.D. & C.2d 722, 724-25 (1954); Nixdorf v. Busser, 62 Pa.D. & C. 567, 569 (1948); Heatter v. Lucas, 367 Pa. 296, 80 A.2d 749, 751-52 (1951); Johnson v. Hart, 6 Watts & Serg. 319, 322 (1843). The rule has been applied to construe a deed to two married couples as creating two tenancies by the entirety. Dennis v. Dennis, 152 Ark. 187, 238 S.W. 15, 17 (1922); Platt v. Platt, 93 N.J.Eq. 395, 116 A. 326, 326 (1922); Price v. Pestka, 54 App.Div. 59, 66 N.Y.S. 297, 298 (1900). However, the presumption that a tenancy by the entirety is created and takes an undivided one-half interest under a deed to a married couple and a third party has been found to be overcome by a clear expression of intent not to create such a tenancy. Kolker v. Gorn, 193 Md. 391, 67 A.2d 258, 261 (1949); Kurpiel v. Kurpiel, 50 Misc.2d 604, 271 N.Y.S.2d 114, 116 (1966). Similarly, the presumption that two tenancies by the entirety are created by a deed to two married couples has been found to be...