Harms v. Sprague
Decision Date | 21 November 1983 |
Docket Number | No. 4-82-0675,4-82-0675 |
Citation | 75 Ill.Dec. 155,456 N.E.2d 976,119 Ill.App.3d 503 |
Parties | , 75 Ill.Dec. 155 William H. HARMS, Plaintiff-Appellant, v. Charles D. SPRAGUE, Individually and as Executor of the Estate of John R. Harms, Deceased; Carl T. Simmons, and Mary E. Simmons, Defendants-Appellees. |
Court | United States Appellate Court of Illinois |
James W. Day, White Hall, for plaintiff-appellant.
Charles E. McNeely, Jacksonville, for Sprague.
Robert H. Mehrhoff, Carrollton, for Simmons.
The question presented by this appeal is whether a mortgage by one joint tenant of his interest in property that he owns in joint tenancy with another severs the joint tenancy. We conclude that it does not. William and John Harms, brothers, owned an improved lot in Roodhouse as joint tenants with the right of survivorship. John mortgaged his interest in the property to the Simmonses and died while the mortgage was still outstanding; his will left all his real and personal property to Charles Sprague. William Harms brought this action to determine the title and ownership of the property, naming as defendants Sprague, the devisee, and the Simmonses, the mortgagees. Sprague asserted his interest as a tenant in common, subject to the mortgage lien. The Simmonses asked that the mortgage be regarded as an existing lien, regardless of the ownership of the property. The trial court held that the mortgage severed the joint tenancy, reducing it to a tenancy in common, and that an undivided one-half interest in the property passed to Sprague on John's death, encumbered by the mortgage. William Harms appeals, and we reverse.
The facts in this case were stipulated. On June 26, 1973, William and John Harms took title to the property in question as joint tenants, not as tenants in common, with full right of survivorship; the deed reciting this was recorded June 29, 1973. Carl and Mary Simmons, husband and wife, owned an improved lot in Roodhouse that Sprague wanted to buy. Sprague paid $18,000 in cash and gave the Simmonses a promissory note for $7,000, which John Harms cosigned. The note said that it was "[p]ayable out of the proceeds from the sale of the interest of John R. Harms in a house and lot situated at 220 E. Clay St., Roodhouse, Ill., but in no event later than 6 months from the date hereof," and also that "payment of this note is secured by a real estate mortgage executed by John R Harms." The note shows five monthly interest payments of $70 each, beginning in July 1981 and ending in November 1981. The mortgage recites that it is of John Harms's "undivided one-half interest" in the property. William Harms was not told about the mortgage. Both the note and the mortgage were executed and delivered to the Simmonses June 12, 1981, and John Harms then moved from the joint tenancy property to the property being bought. John Harms died testate December 10, 1981, leaving his entire estate to Sprague; the Simmonses recorded the mortgage December 29, 1981. The note was not in default when John Harms died. Also, the parties agreed in the trial court that intent was irrelevant.
The trial judge accepted the parties' stipulation as his findings of fact and held that the mortgage severed the joint tenancy, creating a tenancy in common between John and William; therefore, Sprague took an undivided one-half interest in the property at John's death, subject to the mortgage; William Harms's one-half interest was unencumbered.
William Harms argues on appeal that the mortgage executed by his brother did not sever the joint tenancy and that the Simmonses' mortgage lien disappeared at the death of the mortgaging joint tenant, John Harms.
Four unities are required for the creation and continuation of a joint tenancy: time, title, interest, and possession. (Tindall v. Yeats (1946), 392 Ill. 502, 64 N.E.2d 903.) The court said in Tindall, "That a joint tenancy will be destroyed by the destruction of any one of its necessary unities, is axiomatic." (392 Ill. 502, 508, 64 N.E.2d 903, 906.) No case in Illinois has decided the question whether a mortgage executed by fewer than all joint tenants severs the joint tenancy. (Mattis, Severance of Joint Tenancies by Mortgages: A Contextual Approach, 1977 S.Ill.U.L.J. 27, 52.) The supreme court has frequently said in dictum, however, that a mortgage by one joint tenant of his interest severs the joint tenancy. (E.g., Public Aid Com. v. Stille (1958), 14 Ill.2d 344, 153 N.E.2d 59; Tindall; Van Antwerp v. Horan (1945), 390 Ill. 449, 61 N.E.2d 358; Partridge v. Berliner (1927), 325 Ill. 253, 156 N.E. 352; Hardin v. Wolf (1925), 318 Ill. 48, 148 N.E. 868; Lawler v. Byrne (1911), 252 Ill. 194, 96 N.E. 892.) The court has also said, again in dictum, that a mortgage entered into by all the joint tenants does not sever the joint tenancy. Stille.
Dicta are not binding authority though they may be persuasive. (Williams v. Crickman (1980), 81 Ill.2d 105, 39 Ill.Dec. 820, 405 N.E.2d 799.) William Harms argues that the supreme court's dicta on mortgages and joint tenancies are unpersuasive because the assumption underlying them is no longer valid. That assumption is that a mortgage conveys title between the mortgagor and mortgagee; a joint tenant's mortgage of his interest therefore destroys the unity of title. William Harms argues that a mortgagee now takes only a lien on the property, and that liens, by themselves, do not sever joint tenancies. William Harms also argues that he took the entire property free of the lien of mortgage when his brother, the mortgagor, died.
In Van Antwerp the supreme court discussed at length the reasons for finding severance when one joint tenant mortgages his interest. That case involved a levy made under execution of a judgment on the interest of one joint tenant. The court rejected the argument that the levy, like a mortgage, severed the joint tenancy. The court believed that a mortgage was different. The interest of a mortgagee is different from the interest of a levying judgment creditor:
Although the supreme court has not expressly overruled its decision in Rohrer, which the Van Antwerp court cited for the proposition that a mortgage conveys title between mortgagor and mortgagee, that decision conflicts with a later one, Kling v. Ghilarducci (1954), 3 Ill.2d 454, 121 N.E.2d 752. The question in Kling was whether some easements in land were created; in deciding that, the court discussed the effect that giving a trust deed had on the owner's title. The court said:
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