Riley v. Turpin

• Decision Date: 11 October 1956
• Citation: 301 P.2d 834,47 Cal.2d 152
• Court: California Supreme Court
• Parties: William Branch RILEY, also known as William Brand Riley, Plaintiff and Respondent, v. Hallie Ford TURPIN, Defendant and Appellant. S. F. 19261.

Page 834

301 P.2d 834

47 Cal.2d 152

William Branch RILEY, also known as William Brand Riley, Plaintiff and Respondent, v. Hallie Ford TURPIN, Defendant and Appellant.

S. F. 19261.

Supreme Court of California, In Bank.

Oct. 11, 1956.

Russell T. Ainsworth, San Francisco, for appellant.

Hilary H. Crawford and Hilary H. Crawford, Jr., San Francisco, for respondent.

SCHAUER, Justice.

Defendant appeals from an interlocutory judgment in partition under which certain real property is ordered sold and the proceeds divided between plaintiff and defendant according to a formula set forth in the judgment. We have concluded that the judgment is correct except as to computation of the percentage of the proceeds to which the respective parties are entitled, but that a reversal is required for further proceedings to permit correction of the error.

In February, 1941, Arthur Brand and Hallie Turpin (defendant) entered into a written agreement whereby a home owned by Brand would thereafter be 'the joint property of the parties hereto with the right of survivorship, except that in the event that' William Riley (Brand's nephew, and plaintiff herein) survived both of them the property 'shall vest in William Branch Riley, in fee simple, but in the event of the death of William Branch Riley, dying before both of the parties to this Agreement, then the survivor of * * * (Brand and Turpin) shall take all the property in fee simple absolute.'

Brand died in May, 1947, and defendant, Mrs. Turpin, has lived in the home ever since. She did not pay the real property taxes and on June 25, 1948, the property was sold to the state. (Rev. & Tax.Code, § 3436.) Near the end of the five-year redemption period plaintiff Riley made formal demand upon defendant to pay the taxes but she failed to do so. In May, 1953, plaintiff paid enough on the taxes to prevent a final forfeiture. (Rev. & Tax.Code, § 3613.)

In July, 1953, plaintiff filed this suit against Mrs. Turpin seeking partition and sale of the property and recovery, from defendant's share of the sale proceeds, of the taxes paid by plaintiff. The court entered its interlocutory judgment so ordering, ¹ and this appeal by defendant followed.

As grounds for reversal, defendant first urges that under the written agreement plaintiff has no interest in the property whatsoever, and suggests that he acted as a mere volunteer in paying the taxes. It is apparent, however, that the trial court properly held that defendant is the owner of a life interest in the property with a contingent remainder in the fee dependent upon her surviving plaintiff, and that plaintiff is owner of a contingent remainder in the fee dependent upon his surviving defendant.

Defendant argues that because the right of survivorship is one of the essential elements to a joint tenancy, therefore any exception to such right contained in the agreement is irreconcilable and repugnant to a joint tenancy estate and is therefore void. This contention is without merit. McDonald v. Morley (1940), 15 Cal.2d 409, 101 P.2d 690, 129 A.L.R. 810, and California Trust Co. v. Anderson (1949), 91 Cal.App.2d 832, 205 P.2d 1127, relied upon by defendant, both involved joint tenancies in the entire estate in the property involved, whereas in the present case the joint tenancy created was of a life estate only, based upon the life of the survivor of the two parties to the agreement, Brand and defendant. A joint tenancy may, of course, be created in an equitable or legal estate or any other kind of estate recognized by the law. (See O'Neill v. O'Malley (1946), 75 Cal.App.2d 821, 824, 171 P.2d 907; Lowenthal v. Kunz (1951), 104 Cal.App.2d 181, 183, 231 P.2d 62; 13 Cal.Jur.2d 300.) Brand and Mrs. Turpin agreed that as between themselves the survivor should retain the property until his or her death, and that the remainder would be the property of the survivor as between themselves and plaintiff Riley. Thus, Brand and Mrs. Turpin held a life estate in joint tenancy, and Brand, Mrs. Turpin and Riley each held a contingent remainder, dependent upon surviving the other two. In Zeigler v. Bonnell (1942), 52 Cal.App.2d 217, 220, 126 P.2d 118, the court remarked that 'While both joint tenants are alive each has a specialized form of life estate, with what amounts to a contingent remainder in the fee, the contingency being dependent upon which joint tenant survives.'

McGarrigle v. Roman Catholic Orphan Asylum (1905), 145 Cal. 694, 79 P. 447, 1 L.R.A.,N.S., 315, and Litten v. Warren (1936), 11 Cal.App.2d 635, 54 P.2d 39, also relied upon by defendant, concern writings lacking the specific and definite language employed by the parties to the agreement here involved, and contain nothing in point or persuasive on the issues before us.

The next question is whether Riley is entitled to bring an action in partition against Mrs. Turpin. Section 752 of the Code of Civil Procedure provides that '* * * where real property is subject to a lien on a parity with that on which the owner's title is based, an action in partition may be brought by the owner or by the holder of such lien, for a partition thereof according to the respective rights of the person interested therein, and for a sale of such property, or a part thereof, if it appears that a partition can not be made without great prejudice to the parties.' Here, the obligation to pay the taxes was upon Mrs. Turpin as life tenant (Civ.Code, § 840), and, as we have seen, Riley paid them in order to prevent final forfeiture of the property. It is established that, as a contingent remainderman, his interest in the property was such as to entitle him to make such payment without being considered a mere volunteer (Schofield v. Green (1944), 115 Ind.App. 160, 56 N.E.2d 506, 507(1), 508(7); Sheldon on Subrogation, p. 12; 31 C.J.S., Estates, § 98, pp. 116-117; see also Treat v. Craig (1901), 135 Cal. 91, 93, 67 P. 7; San Gabriel Valley Land & Water Co. v. Witmer Bros. Co. (1892), 96 Cal. 623, 635, 29 P. 500, 31 P. 588, 18 L.R.A. 465, 470; Miller & Lux, Inc., v. Sparkman (1932), 128 Cal.App. 449, 453-454, 17 P.2d 772; In re Estate of Kemmerrer (1952), 114 Cal.App.2d 810, 814, 251 P.2d 345, 35 A.L.R.2d 1393; 20 Cal.Jur. 908-909; cf. Huddleston v. Washington (1902), 136 Cal. 514, 69 P. 146); and that under equitable principles of subrogation he thereby succeeded to the lien held by the public taxing bodies. (See Willmon v. Koyer (1914), 168 Cal. 369, 371, 374-375, 143 P. 694, L.R.A.1915B, 961; Fresno Investment Co. v. Brandon (1926), 79 Cal.App. 387, 389, 249 P. 548; Bumiller v. Bumiller (1918), 179 Cal. 119, 124, 175 P. 897; Finnell v. Finnell (1911), 159 Cal. 535, 540, 114 P. 820; Kenney v. Kenney (1950), 97 Cal.App.2d 60, 62-63, 217 P.2d 151; In re McCarty's Estate (1936), 158 Misc. 287, 285 N.Y.S. 641, 643-644; Harris on Subrogation, p. 224; 23 Cal.Jur. 925-926, 930, 935, and cases there cited; 50 Am.Jur. 728-729, 762; Camden v. Fink Coal & Coke Co., 106 W.Va. 312, 145 S.E. 575, 61 A.L.R. 587; Central Wisconsin Trust Co. v. Swenson, 222 Wis. 331, 267 N.W. 307, 106 A.L.R. 1212; see also 33 Am.Jur. 997.) Further, it is specifically provided in section 2903 of the Civil Code that 'Every person, having an interest in property subject to a lien, has the right to redeem it from the lien, at any time after the claim is due, and before his right of redemption is foreclosed, and, by such redemption, becomes subrogated to all the benefits of the lien, as against all owners of other interests in the property, except in so far as he was bound to make such redemption for their benefit.' (See Stein v. Simpson (1951), 37 Cal.2d 79, 83-85 3, 4, 5,...