Bernhard v. Bernhard
| Decision Date | 15 July 1965 |
| Docket Number | 6 Div. 167 |
| Citation | 177 So.2d 565,278 Ala. 240 |
| Parties | Joanna T. BERNHARD v. Charles B. BERNHARD, Jr. |
| Court | Alabama Supreme Court |
Corretti & Newsom, Birmingham, for appellant.
Cato & Hicks, Birmingham, for appellee.
The parties to this litigation are husband and wife. The wife lives in the home of the parties which they bought in 1957. The deed under which they took title to the property conveyed the same to them as joint tenants with right of survivorship. These parties are now estranged but not divorced and the husband no longer lives in the home. He filed a bill seeking to have the property sold for division. The trial court, after oral hearing, ordered the property sold. The wife appealed.
The habendum clause in the deed under which the property was conveyed is as follows:
'To have and to hold unto the said Charles B. Bernhard, Jr. and Joanna T. Bernhard, his wife, as joint tenants with right of survivorship, their heirs and assigns forever; it being the intention of the parties to this conveyance, that (unless the joint tenancy hereby created is severed or terminated during the joint lives of the grantees herein), in the event one grantee herein survives the other, the entire interest in fee simple shall pass to the surviving grantee, and if one grantee does not survive the other, then the heirs and assigns of the grantees herein shall take as tenants in common.'
The sole question to be decided is whether property held under a joint tenancy deed with the aforesaid right of survivorship may be sold for division at the instance of one of the tenants over the objection of the other. The question is not without difficulty and has not heretofore been decided in this state.
Joint tenancies as known to the common law have been abolished by statute in Alabama:
'When one joint tenant dies before the severance, his interest does not survive to the other joint tenants, but descends and vests as if his interest had been severed and ascertained, * * *.' Title 47, § 19, Code of 1940, recompiled 1958.
In 1852, this Court noted:
Parsons v. Boyd, 20 Ala. 112, 118.
The statute referred to and quoted above was subsequently amended by adding immediately after the language above, the following:
'* * * provided, however, that in the event it is stated in the instrument creating such tenancy, that such tenancy is with right of survivorship, or other words used therein showing such intention, then upon the death of one joint tenant, his interest shall pass to the surviving joint tenant or tenants according to the intent of such instrument.' Title 47, § 19, supra.
Did the legislature then intend that persons could by express provision in the instrument create an estate with all of the incidents of the common law joint tenancy? At common law for joint tenancy to exist the four unities of time, title, interest and possession had to be present at the creation of the estate and any event which destroyed one of the unities destroyed the estate. Each tenant was seized per my et per tout, i. e., each owned one half, while at the same time, he owned the whole. Walthall v. Goree, 36 Ala. 728; 48 C.J. 808, 70 C.J.S. 449. There were no cross contingent remainders. The death of the first tenant simply removed the impediment to a complete title in the survivor. The...
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In re Powell
...July 15, 1965 and November 9, 1972 actually create tenancies in common for life with cross-contingent rights of survivorship. In Bernhard v. Bernhard, the Alabama Supreme Court held that language in a deed which appears to convey property as joint tenants with rights of survivorship effecti......
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Peinhardt v. Peinhardt
...794 (1972)." Porter v. Porter, 472 So. 2d 630, 632 (Ala. 1985). The confusion arose from this Court's decision in Bernhard v. Bernhard, 278 Ala. 240, 177 So. 2d 565 (1965). In In re Spain, 831 F.2d 236 (11th Cir. 1987), the United States Court of Appeals for the Eleventh Circuit provided a ......
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Buck Creek Industries, Inc. v. Alcon Const., Inc.
...joint tenant or tenants according to the intent of such instrument. The analysis in Brown was explicitly based on Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965), the first definitive exposition of Section 19, Title 47, Alabama Code, as it exists The question before the Court in Be......
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Shrout v. Seale
...Bar, is most helpful. 22 Alabama Lawyer 341, (1961). Subsequently, this court has considered some of the problems in Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565, wherein this court held that an habendum clause substantially identical with the clause quoted above' . . . did create a te......
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