Johnson v. MacIntyre, 24

• Decision Date: 12 November 1999
• Docket Number: No. 24,24
• Citation: 356 Md. 471,740 A.2d 599
• Parties: Diane M. JOHNSON v. Carol L. MacINTYRE.
• Court: Maryland Court of Appeals

740 A.2d 599

356 Md. 471

Diane M. JOHNSON v. Carol L. MacINTYRE.

No. 24, Sept. Term, 1999.

Court of Appeals of Maryland.

November 12, 1999.

Cynthia E. Young, Annapolis, for petitioner.

Laura V. Berthiaume (Margaret D. Farthing & Assoc., P.C., on brief), Rockville, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ RODOWSKY, Judge.

We consider here the effect of a conveyance to a third party by one joint tenant, without the consent of the other joint tenant, of a parcel, described by metes and bounds, out of a larger, jointly-held tract. The issue arises in the grantee's action for an adjudication of rights and for partition.

The petitioner, Diane M. Johnson (Johnson), and the respondent, Carol L. MacIntyre (MacIntyre), are the daughters of Ada L. Lowe (Lowe). In May of 1976, Lowe solely owned in fee simple a tract that included all of Lot 41 in Section No. 1 of the Cabin John Park subdivision (Lot 41) in Montgomery County.¹ Lot 41 was then and is now improved by two single-family residences, one known as 7653 MacArthur Boulevard, located on the western portion of Lot 41, and the other known as 7647 MacArthur Boulevard, located on the eastern portion of Lot 41.

On May 13, 1976, Lowe deeded all of Lot 41 to herself and to Johnson "in fee simple, as joint tenants" (the 1976 Deed). On March 10, 1983, Lowe executed and acknowledged, and on April 7, 1983, recorded two deeds. By its terms, the deed first recorded conveyed the western portion of Lot 41, described by metes and bounds, to Lowe and Johnson "in fee simple, as joint tenants" (the Johnson Deed). The second deed, recorded immediately after the Johnson Deed, by its terms conveyed the eastern portion of Lot 41, described by metes and bounds, to Lowe and MacIntyre "in fee simple, as joint tenants" (the MacIntyre Deed). The deeds made the two parcels "subject to a joint driveway." Johnson did not sign these deeds or authorize Lowe to act on her behalf in executing them.

Lowe executed her will in August 1994, devising "all of [her] interest" in both the western and the eastern parcels to Johnson. For approximately twenty years Johnson had lived in the residence on the western parcel while Lowe had lived in the residence on the eastern parcel. Lowe died August 31, 1996.

After Lowe's death, Johnson and MacIntyre each claimed title to the eastern parcel. MacIntyre sued Johnson and the Lowe estate in the Circuit Court for Montgomery County, and it appears that the residence on the eastern parcel has remained unoccupied during this litigation. MacIntyre seeks, inter alia, to quiet title to the eastern parcel in MacIntyre's favor "as surviving joint tenant pursuant to the [MacIntyre Deed]"; to possess that property; and, in the alternative, to partition "said property," in the event that the MacIntyre Deed did "not convey the entirety of 7647 MacArthur Boulevard to ... MacIntyre."² Both parties moved for summary judgment.

In her motion for summary judgment, MacIntyre made the following contentions. The 1976 Deed conveyed Lot 41 to Lowe and Johnson as joint tenants. The 1983 deeds, "construed as a single, integrated transaction," severed the prior joint tenancy as to all of Lot 41 and conveyed to MacIntyre "an undivided interest, held in joint tenancy [with Lowe], in a special tract in Lot 41." As a result, Johnson's interest became "that of a tenant in common with an undivided one half interest in the whole of Lot 41."

MacIntyre admitted that, "under the basic principle of cotenancy[,] ... if each tenant has an undivided right to possession of the whole, then one cotenant may not carve out a specific portion of the property for exclusive use." Nonetheless, MacIntyre argued that the 1983 deeds had severed the joint tenancy between Lowe and Johnson and conferred upon MacIntyre as grantee "`rights, which will be considered by the court in making the partition of the whole tract, and which will be respected, so far, and so far only, as they can be without prejudice to the original co-tenant of the entire tract.'" Oneal v. Stimson, 70 W.Va. 452, 74 S.E. 413, 414 (1912) (quoting Boggess v. Meredith, 16 W.Va. 1, 29 (1879)). MacIntyre further submitted that the court could respect Johnson's rights, or give her "no less than what she was entitled to receive prior to the execution of the 1983 deeds," by partitioning Lot 41 and assigning the western portion to Johnson and the eastern portion to MacIntyre. MacIntyre stated:

"In view of the fact that [Johnson] has resided on the western portion of Lot 41 (7653 MacArthur Boulevard) for almost two decades, and that [Lowe] had resided on the eastern portion of Lot 41 (7647 MacArthur Boulevard) for that same period of time, and in view of the fact that the tax map reflected the same division... the portion that [Lowe] would have been allotted in any partition action would have been the eastern portion. The fact that [Lowe] executed a deed attempting to convey exactly that portion to herself and [MacIntyre, as joint tenants] and attempting to confirm the other portion in [Johnson] proves that such a division was certainly within [Lowe's] contemplation. Thus, in any partition action as between [Lowe] and [Johnson] as to Lot 41, [Johnson] would have gotten the portion on which she had always resided—the western portion. Such a partition now, assigning [MacIntyre] that `part ... of the share of [her] grantor'—i.e. the eastern portion—works no prejudice to [Johnson] as the co-tenant of the grantor in the entire tract. If [Johnson] is allotted the western portion of Lot 41, she will receive no less than that which she would have been entitled to in any event in any partition action between herself and [Lowe]."³

MacIntyre urged the court to partition Lot 41 in the manner just described.

Johnson argued that the 1976 Deed established a joint tenancy in Lot 41 between Lowe and Johnson. Johnson characterized Lowe's 1983 deeds, however, as an impermissible "attempt to transfer the whole property." In this light, Johnson argued that, "[u]nlike a conveyance by a party of his undivided interest in the joint property, the attempted conveyance of the whole property will not effect a severance of the joint tenancy." Consequently, Johnson submitted, Lowe's attempt to convey more of the joint property than she owned was void, so that Johnson took the whole of Lot 41 upon Lowe's death by survivorship.⁴ Alternatively, if the 1983 conveyances were valid, Johnson submitted a fallback position which she has modified somewhat in this Court and which we shall consider, infra.⁵

The circuit court concluded that the 1976 Deed was a valid conveyance, and then said:

"The court finds, however, that under the [Johnson Deed Lowe] clearly attempted to unilaterally and impermissibly reduce [Johnson's] interest in Lot 41 from an undivided one-half interest as a joint tenant of the entire Lot 41 to a joint tenancy in the western portion of Lot 41 only. Furthermore, the [MacIntyre D]eed attempted to segregate the eastern portion of the parcel as the exclusive property of [Lowe and MacIntyre], again as joint tenants. It is axiomatic that one cannot convey that which is not theirs. Although [Lowe] retained the right, as a joint tenant in Lot 41, to convey her undivided one-half interest in the entire Lot 41 to [MacIntyre] (thereby converting the joint tenancy between [Johnson] and [Lowe] to a tenancy in common between [Johnson] and [MacIntyre]), [Lowe] retained no right to unilaterally convey any specific portion of Lot 41 to any party. Both the [Johnson and MacIntyre D]eeds indicate that [Lowe] attempted to do just that. The court does not believe it appropriate to do so, and thus refuses to speculate as to the intent of [Lowe]. Consequently, the court will not `rewrite' these deeds or attempt to divine why or to what end [Lowe] executed them."

Thus, the circuit court held that the 1983 deeds conveyed no interest in Lot 41, and that Johnson was the sole owner of the whole of Lot 41 as surviving joint tenant under the 1976 Deed.

MacIntyre appealed to the Court of Special Appeals where she presented the following questions:

"1. Did the Circuit Court err in refusing to ascertain the intent of [Lowe] in executing the March 10, 1983 deeds?

"2. Did the Circuit Court err in holding that a transfer by one cotenant of a specific part of the land jointly owned— a conveyance by metes and bounds—is completely invalid and conveys no cognizable interest to the grantee?

"3. Did the Circuit Court fail to do equity by failing to apportion the eastern portion of Lot 41 to [MacIntyre]?"

MacIntyre argued that the circuit court failed to reach the question of Lowe's intent in executing the MacIntyre Deed only because it erroneously found that the conveyance attempted to do the legally impossible. She submitted that Lowe's "patent purpose was to have [MacIntyre] take 7647 MacArthur Boulevard and [Johnson] take 7653 MacArthur Boulevard in fee simple on her death." Further, MacIntyre stated that she

"agrees that [Lowe], as a co-tenant, could not create an interest in aspecific portion of Lot 41, so that to the extent that the deeds purported to split Lot 41, they did not in fact do so. However, [MacIntyre] contends that the deed purporting to create a joint tenancy with [MacIntyre] in a specific portion of Lot 41 validly conveyed to [MacIntyre] an undivided interest in Lot 41. [MacIntyre] further submits that, construing the deeds together, equity should accord the effect the grantor intended, which was to convey 7647 MacArthur Boulevard to [MacIntyre]."

Finally MacIntyre claimed that the circuit court could partition Lot 41 without prejudice to the rights of Johnson, and that, by failing to do so, the court nullified the 1983 conveyances instead of giving effect to the grantor's intent as would be consistent with equity.

In an unreported opinion the Court of Special Appeals vacated and remanded. The court disagreed...