Durant v. Hamrick

CourtSupreme Court of Alabama
Citation409 So.2d 731
PartiesRoy DURANT v. Steven O. HAMRICK. 79-584.
Decision Date02 October 1981

Norman J. Gale, Jr. of Clay, Massey & Street, Mobile, for appellant.

George A. Tonsmeire, Jr., Mobile, for appellee.

TORBERT, Chief Justice.

Plaintiff appeals from an adverse judgment of the Circuit Court of Mobile County, in a civil action filed against defendant, Steven O. Hamrick, the son of plaintiff's deceased wife, seeking to cancel and set aside a conveyance of real estate from plaintiff's wife to defendant. Plaintiff claimed that his wife was not mentally or physically competent and the execution of the deed was the result of undue influence exercised on her by the defendant, her son.

Plaintiff further claimed to own the property in question (2 parcels) under deeds which conveyed the property to plaintiff and his wife as concurrent owners with certain survivorship provisions which will be discussed more fully in this opinion.

The controlling facts on this appeal are as follows: Over a period of some five years, plaintiff and his wife acquired approximately 31.5 acres of land in four contiguous parcels. Only two parcels are the subject of this appeal. These parcels were acquired in 1968 and 1969 by plaintiff and his wife under deeds of conveyance with identical granting clauses which read as follows:

Grantors do hereby GRANT, BARGAIN, SELL AND CONVEY unto said Grantees ... as tenants in common and with equal rights and interest for the period or term that the said Grantees shall both survive and unto the survivor of the said Grantees, at the death of the other ....

The habendum clause in each of these conveyances reads as follows:

TO HAVE AND TO HOLD the same unto the Grantees in the manner and interest as set forth and stated herein above.

By deed dated December 19, 1977, plaintiff's wife sought to convey her interest in this property to her son, defendant herein, subject to a life estate reserved in the grantor, plaintiff's wife. This deed made no reference to the interest in the property then owned by plaintiff's wife. The trial court held adversely to plaintiff on both theories. As to the December 1977 deed to defendant, the court concluded that plaintiff's wife had validly conveyed her one-half interest in the property described therein. The basis for the trial court's decree was reliance on this Court's decision in Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972).

The issues on this appeal present to this Court an interesting and significant case concerning the property laws of this state. In order to resolve these issues, we deem it necessary to review and discuss, from a historical perspective, the nature and characteristics of the concurrent ownership of property by two or more individuals under property laws involving joint tenancies as distinguished from tenancies in common.

At English common law, joint tenancies rather than tenancies in common were favored. 4 G. Thompson, Commentaries on the Modern Law of Real Property § 1775 (1979); 4A R. Powell, The Law of Real Property § 602 (Rohan ed. 1979). As a matter of law, where a deed conveyed property to two or more persons jointly, the common law presumed that the interest created in the grantees was that of a joint tenancy. II W. Blackstone, Commentaries on The Laws of England 180. In order to create a tenancy in common, it was necessary that the conveyance be specific and affirmatively provide language to confirm the grantor's intent to create a tenancy in common. 4 G. Thompson, supra, at § 1775; 4A R. Powell, supra, at § 602.

American property law developed to the contrary, favoring tenancies in common and not joint tenancies. The members of the First General Assembly of the Alabama Territory followed this development by enacting a statute in 1818, concerning which the Supreme Court as early as 1852 noted the following:

Our statute, it is true, has done away with all joint tenancies, as known at the common law, and declares that when two or more persons shall hold an estate, real or personal, jointly, and one joint tenant dies before severance, his interest in the joint estate shall not survive to the remaining joint tenant or joint tenants, but shall descend to, and be vested in, his heirs or other legal representatives, in the same manner as if his interest had been severed and ascertained; Clay's Digest 169.... The evil that our statute intended to remedy was, to cut off the jus accrescendi, or right of survivorship, which existed at the common law, and to give to the heirs at law of joint tenants the interest of their ancestors, in the same manner as if they had held as tenants in common, and not as joint tenants. It was thought unreasonable that the death of one joint tenant should give the entire estate to the survivor for his own use, to the exclusion of the heirs or next of kin of the deceased tenant.

Parsons v. Boyd, 20 Ala. 112, 118 (1852).

This statute was carried forward in successive Codes and was codified in the 1940 Code of Alabama in the following language:

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.

Code 1940, Tit. 47, § 19.

Having abolished joint tenancies at common law, the above statute was amended in 1945 by the addition of the following language:

(P)rovided, 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.

Code 1940, Tit. 47 § 19 (Recompiled 1958); See 1945 Ala. Acts No. 505 at 730.

This development of the statutory law in our state was discussed in the case of Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965). In that case, a husband filed a partition suit for sale and division of property which had been conveyed to the husband and wife "as joint tenants with right of survivorship, (and to) their heirs and assigns forever"; that deed contained the following provision: "(I)t 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...." In that case, this Court gave effect to the intention of the parties as determined from the language in the deed "consistent with the intentions of the legislature as expressed in the above quoted statute." Bernhard, 278 Ala. at 243, 177 So.2d 565.

In Bernhard, the court held:

(T)he parties here involved intended to create and did create a tenancy in common during the joint lives of the tenants with right of survivorship in the survivor. They carefully said that if neither survived the other, then in that event their property was to descend as if held by them as tenants in common. Such we think is consistent with the intentions of the legislature as expressed in the above quoted statute. Survivorship is allowed, if expressed, as an incident to the estate of tenancy in common. Each does not own the whole, while at the same time owning the half. Rather, each owns an undivided one-half interest in the property for life, plus the right to own the unencumbered whole if he survives his co-tenant.

Bernhard, 278 Ala. at 243, 177 So.2d 565.

Partition by sale and division was not allowed because the property interests created were indestructible by the acts of one owner.

Bernhard remained the law in Alabama until the decision in Nunn v. Keith. The conveyance in Nunn involved a habendum clause virtually identical to the one in Bernhard. Nunn expressly overruled Bernhard. Nunn, 289 Ala. at 523, 268 So.2d 792. Bernhard having been overruled, it is now instructive to consider this Court's latest pronouncement with respect to this type of conveyance. First, in discussing the holding in the Bernhard case, Justice Sommerville, writing for the Court, stated:

(T)he court (in Bernhard ) found that the parties intended to and did create a tenancy in common during their joint lives with right of survivorship which was indestructible except with the consent of every tenant. To arrive at this conclusion, as to indestructibility, the court had equated a tenancy in common, with right of survivorship, to a tenancy in common for the joint lives of the tenants with cross-contingent remainders in both tenants, an estate recognized in some other jurisdictions.... Stated concisely, the rule established by Bernhard is that where two or more persons own property concurrently, with right of survivorship, regardless of what language is used in the instrument creating the estate, they are, by virtue of § 19, Title 47 (Code 1975, § 35-4-7), tenants in common with right of survivorship and such ownership cannot be terminated except upon the deaths of all but the last survivor, or upon partition or sale with the consent of every cotenant.

Nunn, 289 Ala. at 522, 268 So.2d 792.

In Nunn, the court was faced with the situation in which two concurrent owners held property under an instrument which stated that they were joint tenants with right of survivorship and one of these two concurrent owners conveyed his interest to himself and another. The Court in Nunn specifically held contrary to Bernhard with respect to the nature of the property interests created, although the language in the Nunn deed was virtually identical to that used in the Bernhard conveyance:

(T)he Legislature amended the statute (Title 47, § 19) to make it possible to convey in joint tenancy, with right of survivorship, simply by expressly stating such intention in the instrument of conveyance. The statute as amended refers to joint tenants,...

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