Choman v. Epperley

• Decision Date: 30 March 1979
• Docket Number: No. 5026,5026
• Citation: 592 P.2d 714
• Parties: Joseph CHOMAN, a/k/a Joe Choman, Appellant (Plaintiff below), v. Judith Lynn EPPERLEY, Mary Ann Choman, Michael John Choman, and Julia R. Choman, Individually and as Executrix of the Estate of Mike Choman, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 714

592 P.2d 714

Joseph CHOMAN, a/k/a Joe Choman, Appellant (Plaintiff below), v. Judith Lynn EPPERLEY, Mary Ann Choman, Michael John Choman, and Julia R. Choman, Individually and as Executrix of the Estate of Mike Choman, Appellees (Defendants below).

No. 5026.

Supreme Court of Wyoming.

March 30, 1979.

Robert W. Koester, Sheridan, for appellant.

Jeffrey J. Gonda, of Lonabaugh & Vanderhoef, Sheridan, for appellees.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

The sole issue in this case is whether the language in a quitclaim deed created a joint tenancy or a tenancy in common between the named remaindermen. The trial court entered summary judgment in favor of defendants, which held that the instrument created a tenancy in common, and denied a similar motion of plaintiff. Following the trial court's entry of a judgment dismissing the remaining claim in this dispute, we can now entertain proper jurisdiction over the merits of the plaintiff's appeal from the summary judgment. ¹ We shall affirm.

In the deed, grantor remised, released and forever quitclaimed right, title, interest, property, possession, claim and demand in a parcel of land in Sheridan "unto the said MARY CHOMAN, for her natural life, remainder to MIKE CHOMAN of Sheridan, Wyoming, and JOE CHOMAN of Hurst, Texas, their heirs and assigns forever." Mike Choman died testate November 14, 1976 before Mary Choman, who died May 28, 1977. Plaintiff, Joseph (Joe) Choman, filed this quiet title action against defendants, who were beneficiaries under Mike Choman's will, ² contending that the conveyance from Mary Choman created a joint tenancy and that he, therefore, held the entire parcel by virtue of surviving Mike Choman.

The material facts in this matter are not in dispute. Plaintiff contends that the language of the deed created a joint tenancy (1) because the four unities of time, possession, title and interest were present and a joint tenancy Ipso facto resulted the four unities argument; (2) because the language created a joint tenancy at common law, and the common law as adopted by Wyoming has not been changed by statute the common law argument; and (3) because the language in the conveyance is analogous to the language "husband and wife" approved by the court as creating a tenancy by the entirety the analogy argument.

THE FOUR UNITIES ARGUMENT

Plaintiff contends that if the four unities of time, possession, title and interest are present, a joint tenancy results from that fact alone. ³ This reasoning is faulty in the same manner as would be the reasoning that since wood is necessary to construct a wooden chair, all items constructed with wood are Ipso facto chairs. Historically, the four unities have been a requirement for a joint tenancy, but not a definition of such. Tiffany, Real Property (Third Edition), Vol. 2, § 418, p. 196; Powell on Real Property, Vol. 4A, P 615, p. 663; 20 Am.Jur.2d, Cotenancy and Joint Ownership, § 4, p. 96.

Plaintiff relies on the following language in Wambeke v. Hopkin, Wyo., 372 P.2d 470, 475-476 (1962), to support his contention:

" * * * In order to create in Wyoming a joint tenancy or tenancy by the entirety, in personal property, there must exist One of the following Minimum requirements:

"1. Each of the four unities of interest, time, title, and possession must be present, with the added unity of person for a tenancy by the entirety; or

"2. In the absence of one or more of the first four unities, it must be evident from the language of the instrument itself that the parties thereto intended to create a right of survivorship." (Emphasis supplied.)

This language not only fails to support plaintiff's argument, it refutes it. If the four unities are a "minimum" requirement for a joint tenancy, they can not be the sole mark of such. The second alternative recognizes the existence of a joint tenancy without the four unities if the intention to create such is evident. And the second alternative Is an alternative. It provides that a joint tenancy can be created without the four unities. The presence of the four unities, therefore, does not Ipso facto create the joint tenancy. They may

also be present when a tenancy in common is created If the intention to do so is manifest. Manifested intention as the principal determining factor in distinguishing between the creation of a joint tenancy or of a tenancy in common has been recognized in Nussbacher v. Manderfeld, 64 Wyo. 55, 186 P.2d 548 (1947); Hundley v. Neely, Wyo., 365 P.2d 196 (1961); Hartt v. Brimmer, 74 Wyo. 338, 287 P.2d 638 (1955); Wambeke v. Hopkin, supra; Witzel v. Witzel, Wyo., 386 P.2d 103 (1963); Fehling v. Cantonwine, D.C.Wyo., 379 F.Supp. 1250 (1974) affirmed 10th Cir. 1975, 522 F.2d 604; and National Bank of Newcastle v. Wartell, Wyo., 580 P.2d 1142 (1978). Other states have made like determinations. See In Re Baker's Estate, 247 Iowa 1380, 78 N.W.2d 863 (1956); In Re Hutchison's Estate, 120 Ohio St. 542, 166 N.E. 687 (1929); 48 C.J.S. Joint Tenancy § 3d, p. 917; 20 Am.Jur.2d, Cotenancy and Joint Ownership, § 4, p. 97.

THE COMMON LAW ARGUMENT

Plaintiff contends that, where the intention is not manifest, as here, and a conveyance is made to two people, the presumption in Wyoming is that a joint tenancy is created. This, because such a presumption existed at common law, and Wyoming adopted the common law and has not changed the same by statute.

The adoption of common law by Wyoming was not an adoption of a set code of law. By nature, the common law is not a set code of law. Nor was the adoption one of static and nonchanging law. ⁴ The statute (§ 8-1-101, W.S.1977) by which such adoption was made reads:

"The common law of England As modified by judicial decisions, so far as the same is of a general nature and not inapplicable, and all declaratory or remedial acts or statutes made in aid of, or to supply the defects of the common law prior to the fourth year of James the First (excepting the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth and ninth chapter of thirty-seventh Henry Eighth) and which are of a general nature and not local to England, (shall be) the rule of decision in this state when not inconsistent with the laws thereof, and are considered as of full force until repealed by legislative authority." (Emphasis supplied.)

With reference to the emphasized portion of this statute, we have said that:

" * * * we must decide this case in accordance with the decisions subsequent to the time of James I, in so far as not inconsistent with the laws of this state, and the decisions which must govern us, to the extent mentioned, are not only the English decisions * * * , but other decisions as well, comparatively recent though they may be, and we are at liberty to follow any of them, or rest our decision upon the fundamental principle underlying all of them. * * * " Johnston v. Laird, 48 Wyo. 532, 538, 52 P.2d 1219, 1220 (1935).

And again:

" * * * The common law is not exactly the common law of 1607. Many, and probably most of the rules of the common law of 1607, aside from equitable rules and aside from fundamental maxims, have been modified by judicial decisions. * * * However, it is, and has been, the constant practice of courts in common law jurisdictions to freely cite cases from other common-law courts, and we take it that the legislature had in mind the judicial decisions of all the various jurisdictions. The cases may differ; one court may take one view, another another. Hence we cannot consider these various decisions as the law in this state, but as interpretations of the common law, and we are at liberty to adopt that interpretation which seems to be the best." In Re Smith's Estate, 55 Wyo. 181, 192-193, 97 P.2d 677, 681 (1940). See Krug v. Reissig, Wyo., 488 P.2d 150 (1971).

With the foregoing in mind, the change in Wyoming of the common law presumption favoring joint tenancies to a contrary presumption can be demonstrated.

In the first instance, the exact status of the common law relative to this presumption as of the fourth year of James I (1607) can be questioned. Reference is usually made to Sir William Blackstone's Commentaries of the Laws of England to support the existence of the presumption in favor of joint tenancies. 1 Cooley's Blackstone, 4th Ed., Bk. II, Ch. 12, p. 581; 1 Chitty's Blackstone, Commentaries on the Laws of England, Bk. II, Ch. 12, p. 145, and see footnote 4 therein. Blackstone's Commentaries on the Laws of England was first published in 1765 and was based on lectures given by him in the 1750s and 1760s.

But in Hawes and Hawes, 95 Eng.Rep. 552 (1747), Lord Hardwicke said:

"It is true that, in this Court, jointenancies are not favoured, because they are a kind of estates that do not make provision for posterity, neither do I take it that Courts of Law do at this day favour them; although Lord Coke says, that jointenancy is favoured because the law is against the division of tenures, but as tenures are many of them taken away, and in a great measure abolished, that reason ceases, and Courts of Law incline the same way with this Court. * * * "

Since the reason for the presumption in favor of joint tenancies was the existence of tenures, the reason ceased to exist a century or two before 1607. ⁵ Therefore, the existence of the presumption in common law in 1607 without a basis of reason is questionable.

In the second instance, the presumption in favor of joint tenancies has been abolished in England and in most states. 20 Am.Jur.2d, Cotenancy and Joint Ownership, § 11, p. 102; 48 C.J.S. Joint Tenancy § 3d, p. 917. Although this has been usually accomplished by statute, it has also been done by court ruling. Sergeant v. Steinberger, 2 Ohio Rep. 305 (1826); and Houghton v. Brantingham, 86 Conn. 630, 86 A. 664 (1913). Although Wyoming has not, by statute, directly reversed the one time common law presumption...