Jones v. Conwell
| Decision Date | 09 March 1984 |
| Docket Number | No. 810886,810886 |
| Citation | 314 S.E.2d 61,227 Va. 176 |
| Parties | Arthur E. JONES, Trading As Art Jones Travel Service v. Sam CONWELL, et al. Record |
| Court | Virginia Supreme Court |
Louis K. Rothberg, Alexandria, E. Grier Ferguson, Suffolk, for appellant.
Robert K. Thompson, Fairfax (Dix & Thompson, Fairfax, on brief), for appellees.
Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.
This appeal presents an issue of first impression in the Commonwealth: whether a joint tenancy with right of survivorship, as at common law, is subject to partition by a judgment lien creditor of one of the several joint tenants.
Arthur E. Jones, trading as Art Jones Travel Service (Jones), secured two separate judgments against Sam Conwell. The judgments were docketed in the Circuit Court of Fairfax County. Thereafter, the court which entered the judgments issued writs of fieri facias.
Jones then filed a bill of complaint in the Circuit Court of Fairfax County to compel partition of land located in that county and owned by Conwell along with three other individuals with whom he held the property as joint tenants with right of survivorship. Jones sued all the joint tenants.
They filed a demurrer in which they contended that because Conwell was married to one of the joint tenants the relief prayed for could not be granted. The trial court sustained the demurrer, but not on the ground advanced by defendants. According to the trial court, the bill of complaint was demurrable because "the real property which is the subject of the Bill of Complaint for Partition is owned by the Defendants ... as joint tenants with common law rights of survivorship ... and ... said property is not subject to partition pursuant to Section 8.01-81 ... by virtue of Section 55-21."
On appeal, Jones contends that as a matter of statutory interpretation and of public policy, a judgment lien creditor is entitled to reach any property interest which his judgment debtor can reach, including an interest in a joint tenancy with right of survivorship. Put another way, Jones contends that a judgment lien creditor should be allowed to "stand in the shoes" of his judgment debtor so as to reach all assets that could be reached by the debtor. We agree with Jones' analysis; therefore, we will reverse the judgment of the trial court.
The trial court sustained the demurrer on the basis of its reading of Code §§ 8.01-81 and 55-21. Those two provisions read in pertinent part as follows:
Tenants in common, joint tenants, and coparceners of real property, including mineral rights east and south of the Clinch River, shall be compellable to make partition; and a lien creditor ... may also compel partition for the purpose of subjecting the estate of his debtor or the rents and profits thereof to the satisfaction of his lien. Any court having general equity jurisdiction shall have jurisdiction in cases of partition; and in the exercise of such jurisdiction may take cognizance of all questions of law affecting the legal title that may arise in any proceedings, between such tenants in common, joint tenants, coparceners and lien creditors.
The preceding section (§ 55-20) shall not apply to any estate which joint tenants have as executors or trustees, nor to an estate conveyed or devised to persons in their own right when it manifestly appears from the tenor of the instrument that it was intended the part of the one dying should then belong to the others.
A detailed explanation of the trial court's reasoning is not available because this matter was disposed of on demurrer and no letter opinion was written. Nevertheless, it appears the trial court concluded that because Code § 55-21 permits the creation of joint tenancies with the right of survivorship where the intent to create that estate manifestly appears from the tenor of the instrument and because Conwell was a joint tenant with right of survivorship, then § 8.01-81 was inapplicable since it does not expressly refer to partition of joint tenancies with right of survivorship. In essence, the trial court concluded that as a matter of statutory interpretation the words "joint tenants" as used in § 8.01-81 do not include joint tenancies with right of survivorship. We think the trial court's conclusion in that regard is incorrect.
The trial court based its analysis upon the wrong statutes. Instead of considering the relationship between Code §§ 55-21 and 8.01-81, it should have considered the relationship between Code §§ 55-20 and 8.01-81. Code § 55-20 reads in pertinent part as follows:
When any joint tenant shall die, before or after the vesting of the estate, whether the estate be real or personal, or whether partition could have been compelled or not, his part shall descend to his heirs, or pass by devise, or go to his personal representative, subject to debts, curtesy, dower, or distribution, as if he had been a tenant in common.
Code § 55-20 is generally described as abolishing joint tenancies with right of survivorship as at common law. Before the enactment of this statute, conveyance of a joint tenancy, without more, carried with it the right of survivorship. After the enactment of this statute, conveyance of a joint tenancy, without more, conveyed, in effect, a tenancy in common. Code § 55-21 does not bear on the issue raised in this appeal. It merely provides that if the correct intent is shown, a joint tenancy with right of survivorship can still be created in Virginia. But that is not an issue in this case; neither party disputes that such a joint tenancy was created.
Code § 8.01-81 states that "Tenants in common, joint tenants, and coparceners of real property ... shall be compellable to make partition." As we have seen, according to Code § 55-20, where the words "joint tenants" are used by themselves they now mean virtually the same as "tenants in common." As a result, unless the words "joint tenants," as used in Code § 8.01-81, mean joint tenants with right of survivorship, one would have to conclude that the legislature enacted a statute that contains a redundancy, for Code § 8.01-81 would have to be read to mean "Tenants in common, [tenants in common], and coparceners." Such a reading follows not only from the language used in the two relevant statutes but from the principle that "[t]he doctrine of survivorship is the grand incident of joint estates which more than any other distinguishes them from the other instances of estates held in common." 2 Minor on Real Property § 847 (F. Ribble 2d ed. 1928) (hereinafter cited as Minor ). Consequently, once the right of survivorship is stripped from a joint tenancy, what remains is, in practical effect, a tenancy in common. It would be absurd to conclude that the legislature would say the same thing twice in one statutory provision. Yet, if we were to adopt the argument advanced by Conwell, this absurd result would obtain. The rules of statutory interpretation argue against reading any legislative enactment in a manner that will make a portion of it useless, repetitious, or absurd. On the contrary, it is well established that every act of the legislature should be read so as to give reasonable effect to every word and to promote the ability of the enactment to remedy the mischief at which it is directed.
In addition to the compelling statutory argument advanced by Jones, we think Jones is also correct in arguing that if we deny him relief we will thereby elevate joint tenancies with the right of survivorship to the same level now reserved exclusively for tenancies by the entirety, which are immune from the creditors of a single cotenant and which cannot be...
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