New Haven Trolley and Bus Emp. Credit Union v. Hill

• Decision Date: 27 May 1958
• Citation: 145 Conn. 332,142 A.2d 730
• Court: Connecticut Supreme Court
• Parties: NEW HAVEN TROLLEY AND BUS EMPLOYEES CREDIT UNION v. John W. HILL. Supreme Court of Errors of Connecticut

Page 730

142 A.2d 730

145 Conn. 332

NEW HAVEN TROLLEY AND BUS EMPLOYEES CREDIT UNION v. John W. HILL.

Supreme Court of Errors of Connecticut.

May 27, 1958.

Joseph R. Apter, New Haven, with whom, on the brief, was Nelson Harris, New Haven, for appellant (defendant).

Milton A. Bernblum, New Haven, with whom, on the brief, were Annette E. P. Gold and Marvin C. Gold, New Haven, for appellee (plaintiff).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

KING, Associate Justice.

The plaintiff attached the interest of the defendant in certain real estate which he and his wife owned in cotenancy with the right of survivorship. The plaintiff recovered a money judgment against the defendant on April 16, 1956, and on May 8, 1956, filed a proper judgment lien under General Statutes § 7225. The lien, under the terms of that statute, related back to the date of the attachment.

The plaintiff instituted this action for the foreclosure of the judgment lien, and the court rendered judgment of foreclosure, finding the debt to be $872.36, and fixing the law day as September 30, 1957. It was agreed that the fair value of the defendant's individual equity of redemption was $2500, and that the redemption date as fixed was reasonable.

The defendant, in a special defense, pleaded that '[a]n undivided one half interest in survivorship cannot be severed nor can possession be given the plaintiff upon a foreclosure.' The sole question involved in this appeal is the legal efficacy of the special defense.

Since the answer itself does not designate the type of cotenancy, it would be presumed, under our law, to refer to a tenancy in common and not a joint tenancy. Allen v. Almy, 87 Conn. 517, 525, 89 A. 205. At common law, a conveyance to husband and wife, without more, created a tenancy by the entirety, but we early refused to recognize such an estate. Whittlesey v. Fuller, 11 Conn. 337, 341. Under our law the legal effect of such a conveyance is as though the grantees were unrelated. Ibid.; New York, N. H. & H. R. Co. v. Russell, 83 Conn. 581, 591, 78 A. 324. Even when a joint tenancy is created by express language, there is no implied right of survivorship inherent in it. Whittlesey v. Fuller, supra, 11 Conn. 340; State Bank & Trust Co. v. Nolan, 103 Conn. 308, 317, 130 A. 483; Hughes v. Fairfield Lumber & Supply Co., 143 Conn. 427, 430, 123 A.2d 195. But a right of survivorship may be created by appropriate language employed in either a deed or a will. Id., 430 (deed); Peyton v. Wehrhane, 125 Conn. 420, 436, 6 A.2d 313 (will). However, where this is done, the right of survivorship is not an implied incident of the estate created but arises by virtue of the language employed in the instrument providing for survivorship. Hughes v. Fairfield Lumber & Supply Co., supra, 143 Conn. 431, 123 A.2d 197.

The finding states that the property was owned by the defendant and his wife 'jointly * * * with the right of survivorship.' Whether this language alone, was adequate to create a joint tenancy as distinguished from a tenancy in common is a matter we need not determine. See Peyton v. Wehrhane, supra, 125 Conn. 436, 6 A.2d 319. It is obvious from the briefs and oral arguments that both parties considered the interest of the defendant as that of a joint tenant with right of survivorship, and we treat the case as presented to the court below. Anselmo v. Cox, 135 Conn. 78, 79, 60 A.2d 767.

It is the general rule that the interest of a joint tenant may be taken on execution. 14 Am.Jur. 169, § 108. That is our law. Remmington v. Cady, 10 Conn. 44, 47; Buddington v. Stewart, 14 Conn. 404, 408; Peyton v. Wehrhane, supra, 125 Conn. 436, 6 A.2d 319. The execution levy, at least upon the sale, operates as an involuntary conveyance by the joint tenant against whom the execution runs. See Remmington v. Cady, supra, 10 Conn. 49. This in turn causes a severance of his undivided interest, and a consequent destruction of the joint tenancy, which can exist only so long as there as a unity of (1) interest, (2) title, (3) time and (4) possession. 14 Am.Jur. 81, § 7; Houghton v. Brantingham, 86 Conn. 630, 637, 86 A. 664. A tenancy in common, on the other hand, requires only a unity of possession. 14 Am.Jur. 87, § 16; Griswold v. Johnson, 5 Conn. 363, 365. After the termination of the joint tenancy by the severance, the execution creditor, or the purchaser at the execution sale, becomes a tenant in common as regards the remaining cotenants. 14 Am.Jur. 86, § 14; Peyton v. Wehrhane, supra. Among the incidents of a joint tenancy which fall with its termination is the right of survivorship in jurisdictions where that right is an incident of an estate in joint tenancy, as such.

The defendant claims that in Connecticut the interest of a joint tenant, if the language of the granting instrument provides for the right of survivorship, cannot be attached or taken on execution. This result is said to flow from a claimed impossibility of appraising the value of such an interest because of its possible extinguishment upon the death of the joint tenant at an unascertainable future time.

It is the fundamental policy of our law, and always has been, that all the property of a person, unless by law exempt, shall be liable for the payment of any money judgment rendered against him. Remmington v. Cady, 10 Conn. 44, 47; Murphy v. Dantowitz, 142 Conn. 320, 327, 114 A.2d 194; Cum.Sup.1955, § 3194d. It would be strange indeed if in Connecticut, where joint tenancies are not presumed and where they do not, in and of themselves, have the incident of survivorship, the simple expedient of an express provision for survivorship could confer a complete exemption of the interest of each joint tenant, however valuable, from attachment or execution for the satisfaction of his individual debts. We reject such a rule, and hold that where, by express terms in the granting instrument, a joint tenancy is created together with the right of survivorship, the estate thus created is no less subject to attachment and execution than an ordinary common-law joint tenancy with an incidental or implied right of survivorship. Such an estate is subject to destruction by the severance...