Crowther v. Mower, 930446-CA

• Decision Date: 09 June 1994
• Docket Number: No. 930446-CA,930446-CA
• Parties: Dean W. CROWTHER, Plaintiff and Appellee, v. Bryan D. MOWER, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 876

876 P.2d 876

Dean W. CROWTHER, Plaintiff and Appellee, v. Bryan D. MOWER, Defendant and Appellant.

No. 930446-CA.

Court of Appeals of Utah.

June 9, 1994.

Bryan D. Mower, appellant pro se.

G. Brent Smith (argued), Salt Lake City, for appellant.

Verl C. Ritchie (argued), Salt Lake City, for appellee.

Before BILLINGS, DAVIS and ORME, JJ.

OPINION

DAVIS, Judge:

Appellant Bryan D. Mower appeals from a final summary judgment, ordering him to quit claim interest in a parcel of real property in favor of appellee Dean W. Crowther. We reverse and remand.

FACTS

Nellie Crowther, Crowther's wife and Mower's mother, owned in joint tenancy with Crowther, a parcel of real property (the Property), in Summit County, where the Crowthers resided.

On December 15, 1988, Mrs. Crowther executed a quit claim deed conveying her interest in the Property to her son Mower, who was living in Simi Valley, California. Mrs. Crowther's attorney, W. Paul Wharton, sent the quit claim deed, together with a copy of a codicil to Mrs. Crowther's will, to Mower via certified mail.

In Wharton's letter of transmittal, dated December 16, 1988, he noted that he was including the quit claim deed, along with a deed for another parcel of property. He stated, "Acting upon your Mother's request, I am forwarding the two Deeds to you, to complete the transaction by which she transfers ownership to you. The Return Receipt will show that you have received the two Deeds, in case any question of delivery should ever arise." He also stated, "please keep this letter ... as an indication of your Mother's intention to deliver the deeds and how that was accomplished." Earlier in the letter, he stated,

As you know, your Mother wanted to be sure that you receive a 1/2 interest in her property; her intention is to leave the other 1/2 to her step-children. There are two possible chain of events--either your Mother dies before her husband does, or she dies after he does. If she dies first, you should promptly, as soon as it is possible, record the two deeds with the respective County Recorder. If your step-father dies first, I would suggest you contact me (after you've discussed matters with your Mother).

Mrs. Crowther's codicil, signed December 14, 1988, stated "I have by Quit-claim Deed, given to my son one-half of my home and other real property."

Mrs. Crowther died August 9, 1991, while still married to Crowther. Six days later, on August 15, 1991, Mower recorded the quit claim deed.

Crowther instituted a quiet title action against Mower claiming that the deed did not terminate the joint tenancy because of Mower's failure to record the deed prior to Mrs. Crowther's death. Crowther claimed that, upon Mrs. Crowther's death, the Property vested in him by reason of survivorship. Neither party disputed that the deed was delivered, nor did they claim that the quit claim deed was ambiguous on its face. Both parties moved for summary judgment and for attorney fees. Mower, although he initially appeared pro se, requested fees incurred for "bonds and various consulting charges."

The trial court granted summary judgment in favor of Crowther. The minute entry reveals only that the court granted summary judgment in favor of Crowther and that attorney fees would be awarded. The summary judgment, entered April 14, 1993, stated that the court found "no material uncontroverted facts" and that Crowther was entitled to attorney fees. The court declared the quit claim deed to be "null and void and of no force or effect whatsoever." The court then awarded Crowther $1300 in attorney fees pursuant to Utah Rule of Civil Procedure 11.

Mower moved for reconsideration of the summary judgment. The court denied the motion and made another minute entry stating, "The court has found that [Mrs. Crowther] did not have such present intent to [convey] as evidenced by the instructions from counsel.... The court has found that there was lacking a present intent to sever the joint tenancy and thus the later filing of the deed was ineffective to convey an interest to [Mower]."

After judgment was entered, Mower moved for reconsideration of the attorney fees award. The court denied this motion, making the following minute entry: "The Court has been concerned with the plethora of irrelevant and spurious documents filed by [Mower] in this matter."

SUMMARY JUDGMENT

"Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Utah R.Civ.P. 56(c); Winegar v. Froerer Corp., 813 P.2d 104, 107 (Utah 1991). "In reviewing the trial court's ruling, we accept the facts and inferences in the light most favorable to the losing party. Because summary judgment is granted as a matter of law, we may reconsider the trial court's legal conclusions." Winegar, 813 P.2d at 107.

ANALYSIS

I. Dissolution of Joint Tenancy

When a joint tenant makes "a bona fide conveyance of his interest in property to a third party, ... this has the effect of terminating the joint tenancy, and converting the ownership into a tenancy in common." Nelson v. Davis, 592 P.2d 594, 596 (Utah 1979); accord Clearfield State Bank v. Contos, 562 P.2d 622, 624-25 (Utah 1977); Tracy-Collins Trust Co. v. Goeltz, 301 P.2d 1086, 1090 (Utah 1956) (joint tenant who conveys or mortgages real property terminates joint tenancy and creates tenancy in common).

"[E]ither party to a joint tenancy may terminate it ... and ... the consent of the other tenants to the severance or termination is not required." 48A C.J.S. Joint Tenancy § 16 at 343 (1981); accord Nelson, 592 P.2d at 596, 597; Clearfield State Bank, 562 P.2d at 624-25.

The valid conveyance itself destroys the joint tenancy, and a joint tenant need not notify the other tenant or record the conveyance. See Burke v. Stevens, 264 Cal.App.2d 30, 70 Cal.Rptr. 87, 90-91 (1968) ("It was unnecessary in connection with the execution of such a deed that there should be notification to the other joint tenant and unnecessary that the deed be recorded; neither acknowledgment or recordation is necessary."); 48A C.J.S. Joint Tenancy § 17 at 345.

"Survivorship is the distinctive characteristic or major incident of an estate in joint tenancy." 48A C.J.S. Joint Tenancy § 3 at 302. However, survivorship is an expectancy and not a future interest because a joint tenant has but a "conditional opportunity of becoming the owner of the whole interest." Estate of Breckon v. Tax Comm'n, 591 P.2d 442, 443 (Utah 1979).

"The effect of a severance by a joint tenant is to terminate the incident of survivorship as between him and the other joint tenants." 48A C.J.S. Joint Tenancy § 19 at 351 (citing Tracy-Collins, 301 P.2d at 1090); accord 20 Am.Jur.2d Cotenancy and Joint Ownership §§ 14 & 16 at 108, 109 (1965).

Accordingly, Mrs. Crowther had no interest in the Property at the time of her death, having transferred her interest to Mower, and Crowther's ownership interest had already changed from a joint tenancy to a tenancy in common.

II. Effect of Failure to Record

Crowther argues that Mrs. Crowther did not convey her interest because Mower failed to record the deed prior to her death, or alternatively, that Mrs. Crowther did not intend to transfer her interest. We disagree.

A quit claim deed, "when executed as required by law shall have the effect of a conveyance of all right, title, interest and estate of the grantor in and to the premises therein described and all rights, privileges and appurtenances thereunto belonging, at the date of such conveyance." Utah Code Ann. § 57-1-13 (1994). The fact that such a deed is not recorded or that recording is delayed "does not affect the validity of a document with respect to the parties to the document and all other persons who have notice of the document." Utah Code Ann. § 57-3-2(3). In fact, Utah's recording laws "do not make recordation a prerequisite to the validity of a deed." Gregerson v. Jensen, 669 P.2d 396, 398 (Utah 1983) (unrecorded deed valid against interest of subsequent buyers who failed to record their own interest); Tarpey v. Desert Salt Co., 5 Utah 205, 14 P. 338, 339 (1887) (unrecorded conveyance valid between parties and to all parties having actual notice), aff'd, 142 U.S. 241, 12 S.Ct. 158, 35 L.Ed. 999 (1891). Nor is compliance with the recording statute necessarily a prerequisite to enforcing the terms of the deed. Larson v. Overland Thrift & Loan, 818 P.2d 1316, 1323 (Utah App.1991); cert. denied, 832 P.2d 476 (Utah 1992).

On the other hand, an unrecorded deed is void against a subsequent purchaser who purchases in good faith and for valuable consideration and who first duly records the deed. Utah Code Ann. § 57-3-3; see Horman v. Clark, 744 P.2d 1014, 1016 (Utah App.1987) (grantor has no duty to record, while grantee has option to record or assume risk of subsequent grantee acquiring superior rights by recordation). A joint tenant does not, by reason of that status, qualify as a good faith purchaser for purposes of the recording statute.

Thus, a conveyance is valid when the grantor, with present intent to convey, delivers the deed. Winegar v. Froerer Corp., 813 P.2d 104, 110 (Utah 1991); Baker v. Pattee, 684 P.2d 632, 635 (Utah 1984). Recordation is immaterial in determining whether a...