Peinhardt v. Peinhardt

• Decision Date: 24 September 2021
• Docket Number: 1200383
• Citation: 350 So.3d 1202
• Parties: Norma J. PEINHARDT and Larry Wayne Todd v. Louise PEINHARDT and Amelia Peinhardt
• Court: Alabama Supreme Court

350 So.3d 1202

Norma J. PEINHARDT and Larry Wayne Todd

v.Louise PEINHARDT and Amelia Peinhardt

1200383

Supreme Court of Alabama.

September 24, 2021

Dan J. Willingham of Fuller, Willingham & Carter, LLC, Cullman, for appellants.

Beverly Paschal Poston, Cullman, for appellees.

MENDHEIM, Justice.

Norma J. Peinhardt and Larry Wayne Todd, who sought in the Cullman Circuit Court a sale of certain real property and a division of the sale proceeds, appeal from the January 25, 2021, summary judgment entered against them and in favor of Louise Peinhardt and Amelia Peinhardt. We reverse and remand.

I. Facts

Louis Peinhardt ("Louis") died on May 14, 1964. Louis had three children by his first wife, Emma Kress Peinhardt: Amelia Peinhardt ("Amelia"), Herman Louis Peinhardt ("Louis Jr."), and Louise Peinhardt ("Louise"). Louis and his second wife, Marie Peinhardt ("Marie"), also had a daughter, Linda P. Chambers ("Linda"), who is married to Leon Chambers ("Leon"). On April 3, 1965, Marie, Linda, and Leon executed a deed granting title to real property ("the subject property") to Louis Jr., Amelia, and Louise. A residence was located on the subject property, situated on County Road 436 in Cullman. The deed was recorded in the Cullman Probate Court the same day it was executed.

The April 3, 1965, deed, in pertinent part, provided:

"Know All Men By These Presents: That Marie Peinhardt, a widow of Louis Peinhardt, deceased, Louise Peinhardt, Amelia Peinhardt, Herman Louis Peinhardt, and Linda P. Chambers who are all and the only heirs at law of Louis Peinhardt, deceased, ...; and being as such heirs at law, joint owners and tenants in common of the premises hereinafter described and they further being desirous of selling said premises for the purposes of partition and division among said joint owners and tenants in common, and Marie Peinhardt, as the widow of Louis Peinhardt, Deceased, who joins in this conveyance for the purpose of releasing any interest of dower or otherwise in the following described property; and Leon Chambers, as the husband of Linda P. Chambers, who joins in this conveyance to transfer and convey any and all the interest he might own in said property. And that in consideration of the sum of Twenty Thousand and 00/100 ($20,000.00) Dollars, and other good and valuable consideration to the undersigned grantors in hand paid by the grantees herein, the receipt whereof is acknowledged, we, Marie Peinhardt, a widow, Linda P. Chambers, in whom is the legal title and her husband, Leon Chambers, who joins in to convey any and all the interest he might own, do grant, bargain, sell and convey unto Louise Peinhardt, Amelia Peinhardt, and Herman Louis Peinhardt for and during their joint lives and upon the death of either of them, then to the survivor or survivors of them in fee simple together with every contingent remainder and right of reversion all of their right, title and interest in and to the following described real estate situated, lying and being in Cullman County, Alabama, to-wit:

"[Description of the subject property that contains the residence on County Road 436 in Cullman.]

"Further, that as part of the above consideration, the grantors herein convey to Louise Peinhardt, Amelia Peinhardt and Herman Louis Peinhardt for and during their joint lives, and upon the death of either of them, then to the survivor, or survivors of them in fee simple, together with every contingent remainder and right of reversion all of their right, title and interest in and to the personal estate owned by Louis Peinhardt at the time of his decease, together with all of our undivided interest inherited by said grantors under the laws of descent and distribution of the State of Alabama from the Estate of Louis Peinhardt, Deceased,

"TO HAVE AND TO HOLD, to the said grantees for and during their joint lives and upon the death of either of them, then to the survivor, or survivors of them in fee simple, and to the heirs and assigns of such survivor or survivors forever, together with every contingent remainder and right of reversion."

(Capitalization in original; emphasis added.)

On June 21, 2006, Louis Jr. filed a complaint in the Cullman Circuit Court, seeking a sale for division of the subject property, against Amelia and Louise.¹ In that complaint, Louis Jr. alleged that "[t]he parties are tenants in common of" the subject property. Louis Jr. alleged that the subject property could not be equitably divided among the parties, and thus he sought a sale of the subject property for division of the proceeds. Amelia and Louise filed an answer to the complaint in which they alleged that "[t]he parties hold title to the property in a Joint Survivorship capacity" and that therefore the subject property was not subject to division.

For reasons that are not entirely clear from the record, the case remained idle in the Cullman Circuit Court for several years.² However, on June 22, 2016, Louis Jr. executed a warranty deed in which he purported to convey his interest in the subject property to his wife, Norma J. Peinhardt ("Norma"), and his stepson, Larry Wayne Todd ("Larry"), "as joint tenants with a right of survivorship."³ That deed was recorded the following day in the Cullman Probate Court.

On July 15, 2020, Louis Jr. filed a motion to amend his complaint and to add additional plaintiffs. Specifically, Louis Jr. sought to add Norma and Larry as plaintiffs to his complaint for a sale for division; the amended complaint noted Louis Jr.'s conveyance of his interest in the subject property to Norma and Larry, and it again alleged that Louis Jr., Amelia, and Louise "are tenants in common of the real property." On the same date, July 15, 2020, the circuit court granted the motion to add Norma and Larry as plaintiffs in the action.

On July 27, 2020, Louis Jr., Norma, and Larry filed an amended complaint in the circuit court. The amended complaint alleged that all "[t]he parties are tenants in common of the real property." On July 28, 2020, Amelia and Louise filed an answer to the amended complaint in which they again asserted that the subject property was not subject to division because they "hold life estates to the real property sought to be sold" and they "do not consent to the sale of the subject real property for division." On December 2, 2020, Amelia and Louise filed an amended answer in which they asserted that they "hold title to the property as tenants in common in a joint survivorship capacity. Therefore, they are not subject to a partition sale under the statutes cited and Alabama case law."

On December 4, 2020, Amelia and Louise filed a summary-judgment motion in which they contended that a survivorship provision was part of the April 3, 1965, deed, and that

"[a] survivorship provision between cotenants is upheld in this State pursuant to § 35-4-7, Code of Alabama, 1975, amended. A tenancy in common for life with contingent remainder in fee in the survivor differs from a joint tenancy in that the right of survivorship in one tenant in common is not destructible by the act of the other. Durant v. Hamrick, 409 So. 2d 731 (Ala. 1981)."

Amelia and Louise therefore argued that Louis Jr.'s June 22, 2016, conveyance of his interest in the subject property to Norma and Larry was a nullity because Amelia and Louise had not granted consent to the conveyance. An affidavit from Amelia was attached to the summary-judgment motion. In the affidavit, Amelia stated that the intent behind the April 3, 1965, deed was for Louis Jr., Amelia, and Louise to "buy out the interest of Marie Peinhardt and Linda P. Chambers [in the subject property] for a total sum of $20,000.00" and that Louis Jr., Amelia, and Louise

"specifically requested to own the property with right of survivorship so that none of us would ever have to move off the property as long as we lived and the property would remain intact so that the last one of us living would be able to continue to live on the property. We were told at that time that the property could never be sold or divided without all three of us agreeing to do so if we owned it with the right of survivorship provision."

On December 9, 2020, Louis Jr. died, and on December 22, 2020, his attorney filed a suggestion of death with the circuit court.⁴ On January 8, 2021, Norma and Larry filed a response to Amelia and Louise's summary-judgment motion. In that response, they contended that the language of the April 3, 1965, deed dictated that Louis Jr., Amelia, and Louise held the subject property as joint tenants and that, therefore, the right of survivorship was destructible through a conveyance or sale by one owner of his or her interest in the subject property without the consent of the other owners. Consequently, they argued that Louis Jr.'s June 22, 2016, conveyance of his interest in the subject property to them was legally permissible.

In reply to Norma and Larry's filing, Amelia and Louise filed with the circuit court on January 12, 2021, a second affidavit from Amelia that was substantially similar to her first one but added a few details from her perspective about the day the April 3, 1965, deed was executed:

"Our attorney was Jim Berry. I, Amelia Peinhardt, along with Louise Peinhardt, Herman Louis Peinhardt, Marie Peinhardt, Linda P. Chambers, and Leon Chambers met at the law office of James ‘Jim’ Berry which was located in the Plaza Building close to the Court House in Cullman, Alabama to sign the deed on April 3, 1965. Also with us at the time was our uncle, Walter Daniel. On that day and just before the deed was executed, and in everyone's presence we were told by Attorney Jim Berry that the property could never be sold or divided without all three of us, me, Louise Peinhardt and Herman Louis Peinhardt, agreeing to do so if we owned the property with the right of survivorship provision. This is what we wanted. The deed was then signed and was taken to the court house by Walter Daniel to record."

On January 25, 2021, the circuit...