Erickson v. Erickson

• Decision Date: 08 July 1941
• Citation: 167 Or. 1,115 P.2d 172
• Parties: ERICKSON <I>v.</I> ERICKSON
• Court: Oregon Supreme Court

167 Or. 1

115 P.2d 172

ERICKSON

v. ERICKSON

Supreme Court of Oregon.

Argued May 28, 1941.

Affirmed July 8, 1941.

Statutes — Specific repeal — Construction

1. Where statute expressly repeals specific acts, there is presumption that it was not intended to repeal others not specified, but there is an implied approval of statutes not specified.

Joint tenancy — Statutes — Construction

2. The prior statute providing that a conveyance to two or more creates a tenancy in common unless expressly declared joint tenancies, and later statute abolishing joint tenancies are both in effect unless there is an absolute inconsistency between provisions of the two statutes, in view of presumption that prior statute was not specifically repealed by later statute, and presumption arising from fact that both statutes had been referred to by the courts as still in effect.

Courts — Statutes — Construction

3. In construing statute providing that conveyance to two or more creates a tenancy in common unless expressly declared joint tenancies, and statute abolishing joint tenancies, statutes and decisions of other states would be considered as of assistance.

Joint tenancy — Common law

4. For a technical "joint tenancy" at common law, it was necessary that tenants should have same interest, that interest must accrue by same conveyance, that interest must commence at same time, and it must be held by same undivided possession.

Joint tenancy — Right of survivorship

5. The abolition by statute of joint tenancies even in absence of a saving clause permitting the creation thereof by express words must be construed as an abolition of joint tenancy at common law and not as prohibition of right of survivorship if created by express words which right may exist without all of the incidents of technical "joint tenancy".

Statutes — Construction

6. Where statute providing that a conveyance to two or more creates a tenancy in common unless expressly declared joint tenancies was not expressly repealed by subsequent statute abolishing joint tenancies, court had duty to attempt a harmonious construction of the two statutes.

Joint tenancy — Right of survivorship

7. Although technical joint tenancy is abolished by statute, the right of testators and grantors to effectuate their intention by express words still exists at least to extent of creating directly a right of survivorship analogous to the incident of common law "joint tenancy" and as so construed statutes in effect provide that joint tenancy is abolished, and all persons having an undivided interest in realty are to be deemed tenants in common except where right of survivorship is expressly declared.

Joint tenancy — Statutes — Construction

8. The word "deemed" within statute abolishing joint tenancies and providing that all persons having an undivided interest in realty are to be deemed tenants in common creates a rebuttable rather than a conclusive presumption, and while the word usually implies a conclusive presumption, or an adjudication, it may connote a disputable one.

Joint tenancy — Common law

9. A technical joint tenancy at common law may be severed inter vivos by the acts of one joint tenant in selling his interest, or by the levy and sale thereof upon execution by the creditor of one.

Joint tenancy — Right of survivorship

10. Under deed providing that "grantees herein do not take the title in common but with the right of survivorship, that is, that the fee shall vest in the survivor of the grantees" upon death of one of the two grantees, the other became the owner of the fee.

Remainders — Right of survivorship

11. An instrument, construed as creating an estate for life in two or more as tenants in common with a contingent remainder in fee to the survivor, would create an expectant interest of survivorship in each grantee which could not be divested by any act of the other or his creditors.

Joint tenancy — Tenancy in common

12. The statute abolishing technical joint tenancies does not prohibit tenancy in common to two for life, or a contingent remainder in fee or a cross-contingent remainder in fee.

                  See 14 Am. Jur. 84
                  33 C.J., Joint Tenancy, § 3
                

Before KELLY, Chief Justice, and BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Clackamas County.

EARL C. LATOURETTE, Judge.

Action by James T. Erickson against Mittie Erickson under the Uniform Declaratory Judgments Act to obtain an adjudication as to the rights of the parties under a deed. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

John H. Kelley, of Portland, for appellant.

Glenn R. Jack, of Oregon City (Butler & Jack and George L. Hibbard, all of Oregon City, on the brief), for respondent.

The plaintiff, proceeding under the Uniform Declaratory Judgments Act, seeks an adjudication as to the rights of the respective parties under a deed.

The grantors, on the 28th day of November, 1919, executed to James T. Erickson and Peter Erickson, their sons, a conveyance of real property which contained the following recital:

"The Grantees herein do not take the title in common but with the right of survivorship; that is, that the fee shall vest in the survivor of the grantees.

"Together with the tenements, hereditaments and appurtenances thereto belonging, or in anywise appertaining; and also all their estate, right, title, and interest, at law and equity therein or thereto, including rents, issues and profits thereof.

"To Have and to Hold, the same to the said grantees, their heirs and assigns forever; * * *."

Peter Erickson died, leaving the defendant Mittie Erickson as his widow and sole heir at law. James T. Erickson, the surviving brother, as plaintiff, claims that under the provisions of the deed he is now the surviving grantee and owner of the fee simple title to the real property. Mittie Erickson, the defendant, as sole heir of Peter, claims that she is the owner of an undivided one-half interest in the real property as tenant in common with the plaintiff.

The trial court held for the plaintiff as survivor. Defendant appeals.

BRAND, J.

A proper determination of the rights of the respective parties is thought to depend upon the construction of the Oregon statutes relating to joint tenancy. In 1854 the territorial legislature passed an act, of which the following is a part:

"Sec. 38. Joint tenant, or tenant in common, and his executors or administrators, may maintain an action against his co-tenant, for receiving more than his just proportion of the rents or profits of the estate owned by them as joint tenants, or tenants in common." Stat. of Oregon, 1855, p. 410, § 38. (Enacted Jan. 16, 1854.)

The same legislature enacted the following provision:

"Sec. 9. Every conveyance or devise of lands, or interest therein, made to two or more persons, other than to executors and trustees, as such, shall be construed to create a tenancy in common in such estate, unless it be expressly declared in such conveyance or devise, that the grantees or devisees shall take the lands as joint tenants." Stat. of Oregon, 1855, p. 519, § 9. (Enacted Jan. 13, 1854.)

This provision now appears as 5 O.C.L.A., § 70-108. In 1862 there was passed "An act supplemental to an act to provide a code of civil procedure, and to repeal certain acts and sections of acts in conflict therewith." Section 1 provided: "That the acts and sections of acts hereinafter enumerated be and the same are hereby repealed, namely:" Then follows a lengthy enumeration of earlier statutes which are specifically repealed. Among other acts specifically repealed, we find enumerated:

"Section 38 of an act relating to estates in dower, by curtesy, and general provisions concerning real estates, passed January 16th, 1854, and the following is enacted in lieu thereof: `A tenant in common may maintain any proper action, suit, or proceeding against his co-tenant, for receiving more than his just proportion of the rents or profits of the estate owned by them in common; and joint tenancy is abolished, and all persons having an undivided interest in real property are to be deemed and considered tenants in common.'" General Laws of Oregon, 1862, p. 125.

This provision now appears as 5 O.C.L.A., § 70-205. The act of 1862 also specifically repealed two sections and one title of the very same statute of January 13, 1854, which contains section 9, supra, (the section authorizing the creation of joint tenancy is expressly declared). But section 9 was not mentioned among the sections specifically repealed.

1. Where a statute expressly repeals specific acts, there is a presumption that it was not intended to repeal others not specified; on the other hand, there is an implied approval of the statutes not specified. Meese v. Northern Pac. R.R. Co., 211 Fed. 254 (1914); Dickens v. Dickens, 174 Ala. 305, 56 So. 806 (1911); Western New York Institution for Deaf Mutes v. Broome County, 82 Misc. 63, 143 N.Y.S. 241, at 243 (1913); State v. De Graff, 143 Wash. 326, 255 P. 371 (1927); 1 Lewis' Sutherland, Stat. Const. p. 568, § 292; Pace v. State, 189 Ark. 1104, 76 S.W. (2d) 294, at 298 (1934).

"It has even been held, that a specific repeal by one statute of a particular section of another raises a clear implication that no further repeal is intended, unless there is an absolute inconsistency between other provisions of the two statutes." Endlich, Interpretation of Stat. p. 273, § 203; People v. Henwood, 123 Mich. 317, 82 N.W. 70 (1900); 59 C.J. 909, 910, § 512. See also State ex rel. Wagner v. Patterson, 207 Mo. 129, 105 S.W. 1048 (1907).

2. Referring to the statutes of 1854 and of 1862 by their current section numbers, we conclude that there is a strong presumption that O.C.L.A. § 70-108 (from the act of 1854) was not repealed by O.C.L.A. § 70-205, the enactment of 1862.

It is perhaps significant that both sections have remained in the code from the respective dates of enactment to the present time, and that both sect...