Boissonnault v. Savage

• Decision Date: 20 May 1993
• Docket Number: No. 92-155,92-155
• Citation: 137 N.H. 229,625 A.2d 454
• Parties: Charles J. BOISSONNAULT v. Barbara A. SAVAGE.
• Court: New Hampshire Supreme Court

Page 454

625 A.2d 454

137 N.H. 229

Charles J. BOISSONNAULT v. Barbara A. SAVAGE.

No. 92-155.

Supreme Court of New Hampshire.

May 20, 1993.

Robert G. Senn, Nashua, on the brief and orally, for plaintiff.

Spaloss and Rosson, Nashua (Henry F. Spaloss, on the brief and orally), for defendant.

THAYER, Justice.

The plaintiff, a judgment creditor of the defendant's husband, appeals an order of the Superior Court (Murphy, J.) denying the plaintiff's petition for partition of the defendant's marital residence. We reverse and remand for a partition hearing.

The defendant and her husband purchased their marital residence in 1972 as joint tenants with the right of survivorship. The plaintiff filed a civil action against the defendant's husband and received a judgment for $26,400 in 1980. In 1989, plaintiff sued on the judgment, was granted an attachment, and obtained judgment on the original judgment. The plaintiff then sought execution of the judgment in February 1990. To satisfy the execution issued for $45,629, the defendant's husband's interest in the marital residence was auctioned at a sheriff's sale on June 14, 1990. As the highest bidder, the plaintiff acquired title by sheriff's deed. After the statutory redemption period had fully expired, the plaintiff brought a petition for partition. The trial court denied the petition, ruling that the sheriff's sale conveyed to the plaintiff "a life estate in [an] undivided half interest," severing the joint tenancy held by the defendant and her husband. In so ruling, the trial judge determined that the defendant retained her right of survivorship. The plaintiff appeals, arguing that the trial judge erred in determining the state of the title and that, as cotenant with the defendant, the plaintiff is entitled to partition as a matter of law.

While we agree with the trial court's ruling that the sheriff's sale severed the joint tenancy, thus converting the estate into a tenancy in common, we disagree that the defendant retained her right of survivorship. The survivorship right is certainly the distinguishing feature of a joint tenancy. 2 H. Tiffany, The Law of Real Property § 419, at 198 (B. Jones ed., 3d ed. 1939). It is not an absolute right, however, because "a joint tenant may alienate or convey to a stranger his part of interest in the realty, and thereby defeat the right of the survivor." Mulvanity v. Nute, 95 N.H. 526, 528, 68 A.2d 536, 538 (1949) (quotation omitted). The conveyance of a joint tenant's interest at a sheriff's sale severs the joint tenancy and defeats the right of survivorship, after which the judgment creditor, as purchaser at the sale, becomes a tenant in common with the remaining cotenant. See 2 H. Tiffany, supra § 425, at 211; 59A Am.Jur.2d Partition § 54, at 41 (1987).

We conclude that the trial court erred in several respects. First, the court ruled that the defendant cannot be deprived of her survivorship right unless she gives her consent, citing to cases from jurisdictions that recognize tenancies by the entirety. In these jurisdictions, tenancies-by-the-entirety ensure that it will be extremely difficult, if not impossible, for a judgment creditor to destroy a nondebtor-spouse's right of survivorship. This special form of ownership was abolished in New Hampshire in 1860. See Laws 1860, ch. 2342; Clark v. Clark, 56 N.H. 105, 109 (1875) (Smith, J., concurring); see generally C. DeGrandpre, 7 New Hampshire Practice, Wills, Trusts and Gifts § 19.03, at 224 (2d ed.1992). Our State addresses this situation through the use of the homestead exemption, RSA 480:1 (Supp.1992).

Second, the court based its determination on an "expectancy interest" concept in reasoning that "[s]ince the purchase 20 years ago, the defendant has held an expectation of owning the entire property if she outlived her husband" and, unless she consents, "[a] levying creditor of her husband cannot deprive her of that expectation." We hold to the contrary, however, because a purchaser at an execution sale acquiring "the interest of one of two individuals who held their property as joint tenants with the right of survivorship becomes a tenant in common and generally may compel partition." 59A Am.Jur.2d Partition § 54, at 41. A mere expectancy interest is not sufficient to resuscitate the survivorship right that was terminated along with the joint tenancy. See generally 2 American Law of Property § 6.2, at 8-9 (A.J. Casner ed., 1952).

Additionally, in ruling that "[t]he severance did not deprive the defendant of her right to survivorship, because she holds a contingent remainder interest," the trial court cited to a legal encyclopedia for the proposition that

"in some jurisdictions, the addition of the words 'with right of survivorship' to the instrument creating the joint tenancy creates a contingent remainder interest in the survivor which cannot be defeated by the act of one joint tenant. Thus, in some jurisdictions, one tenant is not entitled to have partition over the objection of the other."

59A Am.Jur.2d Partition § 27, at 25-26.

The trial court erred in relying on this proposition because New Hampshire is not one of the jurisdictions that follows it. Our case law recognizes the principle that a joint tenant may defeat the right of the survivor by alienation or conveyance. See Mulvanit...