Herring v. Carroll

• Decision Date: 16 February 1983
• Docket Number: No. 15663,15663
• Citation: 171 W.Va. 516,300 S.E.2d 629
• Parties: Marshall HERRING, et al., etc. v. Clarence CARROLL, Jr., et al., etc.
• Court: West Virginia Supreme Court

Page 629

300 S.E.2d 629

171 W.Va. 516

Marshall HERRING, et al., etc. v. Clarence CARROLL, Jr., et al., etc.

No. 15663.

Supreme Court of Appeals of West Virginia.

Feb. 16, 1983.

Syllabus by the Court

1. In order to create a common law joint tenancy in real property the parties must receive an undivided interest under four conditions: (1) each party's undivided interest must vest at the same time; (2) each party must receive an undivided interest in the whole estate; (3) each party's possession must be coequal so that his property interest is the same as to the legal estate and duration; and, (4) each party must receive his interest in the same title document. These four conditions for the creation of a common law joint tenancy are commonly abbreviated as the four unities of time, interest, possession and title. The main attribute of a common law joint tenancy was the right of survivorship.

2. The common law incident of survivorship in a joint tenancy arose by virtue of the existence of the four unities and was not as a result of any formal words of survivorship in the title document.

3. The common law incident of survivorship in a joint tenancy has been altered by W.Va.Code, 36-1-19. We have rather uniformly held that this statute abrogates the right of survivorship in a common law joint tenancy unless under W.Va.Code, 36-1-20, "it manifestly appears from the tenor of the instrument that it was intended that the part of the one dying should then belong to the others."

4. A joint tenant may convey his undivided interest in real property to a third person. When one of two joint tenants conveys his undivided interest to a third person the right of survivorship is destroyed. Such third party and the remaining joint tenant hold the property as tenants in common.

5. W.Va.Code, 36-1-19 and 20, do not abolish the common law requirement of the four unities in a joint tenancy.

E. Henry Broh, Huntington, for appellants.

Huddleston, Bolen, Beatty, Porter & Copen and Thomas J. Murray, Huntington, for appellees.

MILLER, Justice:

In this appeal from an order of the Circuit Court of Cabell County, we are asked to determine if one joint tenant can convey all of his right, title and interest in real property and, thereby, destroy the other joint tenant's right of survivorship, thus, in effect creating a tenancy in common. The lower court held such action could be taken and we affirm its judgment.

This case began when George Herring, now deceased, instituted a suit attempting to nullify a deed by which his wife conveyed to her son by a previous marriage all "her right, title and interest" in certain property. This property had been conveyed to Mr. and Mrs. Herring as joint tenants with the right of survivorship. ¹ After Mr. Herring's death, his son, Marshall Herring, and daughter, Beatrice Midkiff, devisees under Mr. Herring's will, were substituted as parties plaintiff and are the appellants herein.

The circuit court denied the appellants' motion for a summary judgment and granted the appellee's motion for a summary judgment which established the appellee's ownership of an undivided-half interest in the property. The circuit court held that one joint tenant with the right of survivorship can unilaterally convey his interest in property to another and destroy the other joint tenant's right of survivorship in the property and thereby establish a tenancy in common.

In order to create a common law joint tenancy in real property the parties must receive an undivided interest under four conditions: (1) each party's undivided interest must vest at the same time; (2) each party must receive an undivided interest in the whole estate; (3) each party's possession must be coequal so that his property interest is the same as to the legal estate and duration; and, (4) each party must receive his interest in the same title document. These four conditions for the creation of a common law joint tenancy are commonly abbreviated as the four unities of time, interest, possession and title. The main attribute of a common law joint tenancy was the right of survivorship. H. Tiffany, The Law of Real Property §§ 418-419 (3d ed. 1939); 20 Am.Jur.2d Cotenancy and Joint Ownership §§ 3 & 4 (1965). The common law incident of survivorship in a joint tenancy arose by virtue of the existence of the four unities and was not as a result of any formal words of survivorship in the title document.

The common law incident of survivorship in a joint tenancy has been altered ² by W.Va.Code, 36-1-19, which provides:

"When any joint tenant or tenant by the entireties of an interest in real or personal property, whether such interest be a present interest, or by way of reversion or remainder or other future interest, shall die, his share shall descend or be disposed of as if he had been a tenant in common."

We have rather uniformly held that this statute abrogates the right of survivorship in a common law joint tenancy unless under W.Va.Code, 36-1-20, "it manifestly appears from the tenor of the instrument that it was intended that the part of the one dying should then belong to the others." ³ DeLong v. Farmers Building and Loan Association, 148 W.Va. 625, 137 S.E.2d 11 (1964); Neal v. Hamilton Company, 70 W.Va. 250, 73 S.E. 971 (1912); McNeeley v. South Penn Oil Company, 52 W.Va. 616, 44 S.E. 508 (1903); cf. State ex rel. Miller v. Sencindiver, 166 W.Va. 355, 275 S.E.2d 10 (1980). There is no question in this case that the initial deed to Mr. and Mrs. Herring contained the survivorship provision. ⁴

Under common law property concepts where the conveyance is jointly to a husband and wife, this creates a tenancy by the entirety which is analogous to a joint tenancy in bestowing a right of survivorship. McNeeley v. South Penn Oil Company, supra; 41 Am.Jur.2d Husband and Wife § 55, et seq. (1968); 2 H. Tiffany, The Law of Real Property § 430 (3d ed. 1939). ⁵ However, we have held in two prior cases that the provisions of W.Va.Code, 36-1-19, when coupled with our married woman's statutes have abolished the common law estate of tenancy by the entirety. This point was summarized in Wartenburg v. Wartenburg, 143 W.Va. 141, 146, 100 S.E.2d 562, 565 (1957):

"The effect of the statutes mentioned, especially Code, 36-1-19, we believe, completely abolishes common law estates by entireties. This being true, the deeds mentioned created joint tenancies in the grantees, vesting in each an undivided one half interest in the properties conveyed, subject to the survivorship rights of each other."

See also McNeeley v. South Penn Oil Company, supra. As a consequence of these decisions, we have treated conveyances to husband and wife where the right of survivorship is spelled out in the deed, such as involved in this case, as a joint tenancy.

We have not had occasion to directly determine if a joint tenant of real estate may convey his undivided interest. In Wartenburg v. Wartenburg, supra, we held that partition was available to a joint tenant under W.Va.Code, 37-4-1. It is generally, if not universally, recognized elsewhere that a joint tenant may convey his undivided interest in real property to a third person. When one of two joint tenants conveys his undivided interest to a third person the right of survivorship is destroyed. ⁶ Such third party and the remaining joint tenant hold the property as tenants in common. ⁷ This result obtains because the four essential unities of time, interest, possession and title that must exist to sustain a joint tenancy no longer remain by virtue of the subsequent conveyance to the new grantee. E.g., Ferree v. City of Yuma, 124 Ariz. 225, 603 P.2d 117 (App.1979); First National Bank of Southglenn v. Energy Fuels Corp., 200 Colo. 540, 618 P.2d 1115 (1980); In re Estate of Denler, 80 Ill.App.3d 1080, 36 Ill.Dec. 221, 400 N.E.2d 641 (1980); In re Estate of Laue, 225 Kan. 177, 589 P.2d 558 (1979); Leonard v. Boswell, 197 Va. 713, 90 S.E.2d 872 (1956); Nelson v. Albrechtson, 93 Wis.2d 552, 287 N.W.2d 811 (1980); 2 H. Tiffany, The Law of Real Property § 425 (3d ed. 1939); 64 A.L.R.2d 918 (1959). This point is summarized in 20 Am.Jur.2d Cotenancy and Joint Ownership § 16 at 109 (1965):

"Any act of a joint tenant which destroys one or more of its necessarily coexistent unities operates as a severance of the joint tenancy and extinguishes the right of survivorship. The act of one joint tenant in severing his interest in the property by alienation severs the joint tenancy to that extent, so that if there were but two tenants, the joint tenancy is terminated." (Footnotes omitted)

The appellants point to Syllabus Point 1 ⁸ and the following passage in State ex rel. Miller v. Sencindiver, 166 W.Va. at 361, 275 S.E.2d at 14, and claim we have recognized that the Legislature has altered the common concepts of joint tenancy:

"[B]ecause by the Legislature's modifications of the common law concerning joint tenancies, tenancies by the entireties, and cotenancies which allow creation by the parties of the incident of survivorship when intention to do so has been made clearly evident in a titling document, the Legislature has in effect preempted the matter."

The appellants argue that if joint tenancies are legislatively created then the four common law unities must be deemed to be legislatively abolished. In this event, they assert that the language in the original deed to Mr. and Mrs. Herring creating survivorship must control and this would preclude Mrs. Herring's ability to transfer her undivided interest.

This argument misreads Sencindiver and our prior case law interpreting W.Va.Code, 36-1-19 and 20. In Sencindiver, we were confronted with an interpretation of W.Va.Code, 42-4-2, which precludes a person convicted of conspiring to or feloniously killing another from inheriting the deceased person's property. The statute enumerated specific modes of obtaining the property, i.e. "either by descent and distribution, or by will, or by any...