Nunn v. Keith

• Decision Date: 09 November 1972
• Citation: 268 So.2d 792,289 Ala. 518
• Parties: Estella NUNN v. Calvin C. KEITH. SC 63.
• Court: Alabama Supreme Court

Page 792

268 So.2d 792

289 Ala. 518

Estella NUNN v. Calvin C. KEITH.

SC 63.

Supreme Court of Alabama.

Nov. 9, 1972.

Harold P. Knight, Birmingham, for appellant.

Charles L. Dunn, Birmingham, for appellee.

SOMERVILLE, Justice.

This appeal is from a judgment at law of the Circuit Court of Jefferson County in favor of the plaintiff below, Calvin C. Keith, for the possession of real property situated in said county.

The appellee brought an action of statutory ejectment in code form ¹ and, jury demand having been withdrawn, the case was submitted to the trial court on a written stipulation of facts. The trial court entered judgment against the appellant, Estella Nunn, and upon her motion for a new trial being overruled, she brings this appeal.

The pertinent facts are as follows: In 1949 Ed Nunn and wife, Katie L. Nunn, executed and recorded a warranty deed conveying the real property which is the subject of this suit to themselves and to their grandson, Calvin C. Keith, the appellee, as joint tenants, with right of survivorship. Katie L. Nunn died intestate in 1962 and later that year Ed Nunn married the appellant, Estella Nunn. In 1965 Ed Nunn and wife, Estella, executed and recorded a warranty deed conveying an undivided one-half interest in subject property to themselves for their joint lives with remainder to the survivor in fee simple. Ed Nunn died in 1967 and his widow, the appellant, has remained in possession of the property, paying the taxes and maintenance, but no rent.

Attached to the stipulation of facts are copies of the two deeds referred to above. The habendum clause in the first deed (conveying the property to Ed Nunn, Katie L. Nunn and appellee, Calvin C. Keith) is as follows:

'To have and to hold unto the said Ed Nunn and Katie L. Nunn and Calvin C. Keith, as joint tenants, with right of survivorship, their heirs and assigns forever; it being the intention of the parties to this conveyance, that (unless the joint tenancy hereby created is severed or terminated during the joint lives of the Grantees herein), in the event one Grantee herein survives the other, the entire interest in fee simple shall pass to the surviving Grantee, and if one Grantee does not survive the other, then the heirs and assigns of the Grantees herein shall take as tenants in common.'

This appeal raises a question which can only be answered by delving into one of the most confused areas of Alabama law. What type of estate was created by the 1949 deed, the express language of which establishes a joint tenancy with right of survivorship between Ed Nunn, Katie L. Nunn and Calvin C. Keith? Was it in fact a joint tenancy with right of survivorship, or was it, by virtue of Title 47, § 19, Code of Alabama 1940 (recompiled 1958) and Alabama case law, a tenancy in common, with right of survivorship?

In a joint tenancy at common law each tenant was seized of some fractional share while at the same time each owned the whole. The most significant feature of such a tenancy was the right of survivorship. When one joint tenant died, the deceased's share was owned by the surviving tenants jointly, until only one remained, who then owned the fee. The last survivor took nothing by survivorship as he had always owned the whole. The deaths of the other joint tenants merely removed impediments to the survivor's complete ownership. At common law, a joint tenancy could be created only where the four unities of time, title, interest, and possession were present and the destruction of any of these would terminate the joint tenancy. Thus, a conveyance by a joint tenant of his interest in the property would destroy the joint tenancy. ²

In the United States the common law estate of joint tenancy soon fell into disrepute. In the early 1800's the states and territories began abolishing joint tenancies and in Aikin's Alabama Digest of 1833 at 129 we find the statute which abolished such estates in Alabama. It read as follows:

'When two or more persons hold an estate real or personal, jointly, and one joint-tenant dies before severance, his interest in said joint estate shall not survive to the remaining joint-tenant, or joint-tenants, but shall descend to, and be vested in the heirs or other legal representatives of such deceased joint-tenant, in the same manner as if his interest had been severed and ascertained.'

The above statute was changed slightly when incorporated into the Alabama Code of 1852 to read as follows:

'When one joint tenant dies before the severance, his interest does not survive to the other joint tenants, but descends and vests as if his interest had been severed and ascertained.' (§ 1312)

In Parsons v. Boyd, 20 Ala. 112, this court explained that the above statute was enacted to destroy the right of survivorship which existed at common law as an incident of joint tenancy, and to give to the heirs at law of joint tenants the interest of their ancestors in the same manner as if they had held as tenants in common.

The abolishment of common law joint tenancy in Alabama was confirmed in the 1860 case of Walthall v. Goree, 36 Ala. 728, which seemed to hold that tenancy in common was the only form of concurrent ownership of property recognized in this jurisdiction. This premise went unchallenged for sixty-four years until our decision in First National Bank of Birmingham v. Lawrence, 212 Ala. 45, 101 So. 663. There we recognized that by virtue of the aforementioned statute (at this time it was § 3419, Code 1907) the right of survivorship between joint tenants had been abolished. But, we went on to hold that the above statute did not prevent an express grant to two or more persons, and to the survivor or survivors, upon the death of either. The authority for this last ruling was not cited. Although this case involved personalty rather than realty, it held that the statutory prohibition of survivorship could be avoided in certain instances and did not specifically limit its application to personal property.

In 1940 the statute with which we are concerned, with language unchanged since 1852, became Title 47, § 19, Code of Alabama 1940. In 1945 the statute was amended by adding the following:

'* * * provided, however, that in the event it is stated in the instrument creating such tenancy, that such tenancy is with right of survivorship, or other words used therein showing such intention, then upon the death of one joint tenant, his interest shall pass to the surviving joint tenant or tenants according to the intent of such instrument.'

Thus, the legislature did by statute that which First National Bank of Birmingham v. Lawrence, supra, said could be done anyway.

The statute was amended once again in 1951 with the addition of the following:

'This shall include those instruments of conveyance in which the grantor conveys to himself and one or more other persons, and in which instruments it clearly appears that the intent is to create such a survivorship between joint tenants as is herein contemplated.'

But what did we then have under § 19? Had the common law joint tenancy been revived with a limitation on the manner by which it could be created, or did we have some new estate unknown at the common law?

The first occasion to construe § 19 as it reads today was the 1965 decision of Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565. The deed in the Bernhard case contained an habendum clause almost identical to that contained in the 1940 deed in the case now before us. Justice Simpson in writing the opinion of the court cited Parsons v. Boyd, supra, and stated that joint tenancy was abolished in Alabama and that the common law right of survivorship was the evil the statute (§ 19) sought to destroy. Then, referring to the 1945 amendment, Justice Simpson asked the question of whether the legislature intended that a common law joint tenancy could be created by express intention of the parties or whether the legislature intended only to provide a means of adding the survivorship incident to some different estate. The latter construction was adopted and the court found that the parties intended to and did create a tenancy in common during their joint lives with right of survivorship which was indestructible except with the consent of every tenant. To arrive at this conclusion, as to indestructibility, the court had equated a tenancy in common, with right of survivorship, to a tenancy in common for the joint lives of the tenants with cross-contingent remainders in both tenants, an estate recognized in some other jurisdictions. Since the survivor of such an estate is unascertainable while more than one tenant is living, the property cannot be partitioned or sold for division because the interest of the several tenants cannot be determined until all but one are dead. Stated concisely, the rule established by Bernhard is that where two or more persons own property concurrently, with right of survivorship, regardless of what language is used in the instrument creating the estate, they are, by virtue of § 19, Title 47, tenants in common with right of survivorship and such ownership cannot be terminated except upon the deaths of all but the last survivor, or upon partition or sale with the consent of every cotenant. Thus, Bernhard in creating an indestructible right of survivorship appears to result in something worse than the evil § 19 originally sought to prevent.

The Bernhard opinion was destined to cause serious problems for parties holding title to property under an instrument creating any type of concurrent ownership with right of survivorship. Understandably, the most frequent case involved a husband and wife who owned their home under a survivorship deed and desired to be separated or divorced. In Owens v. Owens, 281 Ala. 239, 201 So.2d 396, this court recognized an exception to the Bernhard rule by holding that in a case of spouses, holding title to property under a survivorship deed, a sale for division could be ordered...