Carson v. Ellis

• Citation: 186 Kan. 112,348 P.2d 807
• Decision Date: 23 January 1960
• Docket Number: No. 41628,41628
• Parties: Laola CARSON, Executrix of the Will of W. O. Ellis, Deceased, Appellee, v. Juanita I. ELLIS, Appellant.
• Court: United States State Supreme Court of Kansas

Page 807

348 P.2d 807

186 Kan. 112

Laola CARSON, Executrix of the Will of W. O. Ellis, Deceased, Appellee, v. Juanita I. ELLIS, Appellant.

No. 41628.

Supreme Court of Kansas.

Jan. 23, 1960.

Syllabus by the Court.

1. An estate by joint tenancy requires unity of interest, title, time and possession.

2. A joint tenancy will be severed by the destruction of any one of its necessary units.

3. A joint tenancy may be severed by a mutual agreement between the parties or by any conduct or course of dealings sufficient to indicate that the parties have mutually treated their interests as belonging to them in common.

4. Under the provisions of G.S.1949, 60-1511, when a decree of divorce has been granted to the wife by reason of the fault of the husband, the court shall make a division of the real property acquired by the parties jointly during their marriage, whether the title thereto be in either one or both of the parties.

5. Generally, a division of property in a final divorce decree is made to enable the parties who own property as joint tenants to sever their interests, and to vest in each a sole estate in specific property or an allotment of lands and tenements.

Thomas E. Gleason and Jules V. Doty, Ottawa, argued the cause, and Douglas Gleason, Ottawa, and Hollis B. Logan, Topeka, were with them on the briefs for appellant.

William L. Rees, Topeka, argued the cause, and Hall Smith and Wright W. Crummett, Topeka, were with him on the briefs for appellee.

WERTZ, Justice.

This was an action brought by the executrix, paintiff (appellee), of the will of W. O. Ellis, deceased, against Juanita I. Ellis, defendant (appellant), former wife of deceased, to recover one-half interest in certain real estate, hereinafter referred to as a duples, alleged to have been the property of W. O. Ellis at the time of his death, and for partition of the property. From a judgment for plaintiff, defendant appeals.

On November 1, 1944, Juanita I. Ellis and W. O. Ellis purchased a two-story duplex, the property in question. It was arranged to accommodate two apartments known as the east half and the west half. They took title to the property in the names of W. O. Ellis and Juanita I. Ellis, as joint tenants with right of survivorship and not as tenants in common. In 1951, Juanita sought a divorce from Mr. Ellis. Both were represented by counsel, and in order to eliminate possible questions concerning division of their property, Juanita and Mr. Ellis, on November 8, 1951, entered into a written property settlement agreement providing for the disposition of the property, which reads in part as follows:

'It is therefore agreed by and between the parties hereto that in the event either party to this Agreement obtains a divorce then the following shall be the division of the real and personal property owned by the parties, subject to the approval of the Court, it being the intention of the parties to make a fair, just and equitable settlement of the respective property rights of the parties to avoid further litigation over the same.'

The contract further provided for the appraisal of the property for the purpose of an equal division of the value thereof between the parties, for the payment of court costs and attorney fees in a divorce action out of the proceeds received from the sale of the property, and for payment of $1,000 to Juanita by Mr. Ellis out of his half of the proceeds received. It further provided that Juanita was to have an option to buy for cash at the appraised value Mr. Ellis' undivided one-half interest in the property, and in the event she was unable to purchase such interest the property was to be sold to the highest bidder. In either event, the sale was to be made within sixty days from the date of the divorce decree.

On the following day, November 9, Juanita was granted a divorce from Mr. Ellis, and the trial court, in making a division of the property of the parties in accordance with the provisions of G.S.1949, 60-1511, incorporated and merged the aforementioned property settlement agreement in its judgment, which reads in part as follows:

'* * * that the real estate of the parties, the legal description of which is as follows: [property in question described] shall be appraised by three appraisers; that the appraised value shall be the value placed on said property for the purpose of division between the parties and that the proceeds from the sale of said property as or above the appraised value shall be divided equally between the parties and out of the proceeds of the sale of said property the court costs, attorney fees and all expenses of the sale shall be paid. The defendant [Mr. Ellis] is hereby ordered to pay to the plaintiff the sum of $1,000.00 out of one-half of the proceeds to be received by him; that the plaintiff be and she is hereby given an option to buy the undivided one-half interest of the defendant for cash at its appraised value, said real estate to be either purchased by the plaintiff or sole at the highest price within sixty days from the date of this decree.'

At the end of the sixty-day period provided for in the property settlement agreement and in the decree of the court, Juanita and Mr. Ellis entered into another agreement on January 9, 1952, in which it was recited that the parties were divorced November 9, 1951, that Juanita had not purchased the property pursuant to the option granted her in the divorce decree and that Juanita and W. O. Ellis were desirous of selling the property for the sum of $20,000 net and dividing the proceeds at a later date in accordance with the terms of the decree which pertained to the property settlement agreement. It further provided:

'* * * that William O. Ellis, until said property is sold, shall have the right to occupy the West one-half of said real estate, and Juanita I. Ellis shall occupy the East one-half, and each shall receive all proceeds received therefrom. Taxes shall be paid and borne equally by the parties. Each shall pay their own utility bills and upkeep of the interior of said property. Any repairs necessary on the exterior of the property shall be borne equally by the parties. The parties agree that in the event a buyer is obtained for the sum of $20,000.00 net each party agrees with the other that they will execute the necessary...