Stuehm v. Mikulski
| Decision Date | 18 April 1941 |
| Docket Number | 30798 |
| Citation | 297 N.W. 595,139 Neb. 374 |
| Parties | ELIZABETH MCKULSKY STUEHM ET AL., APPELLEES, v. LILLIAN DANFORD MIKULSKI, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Sarpy county: WILMER W. WILSON JUDGE. Reversed, with directions.
REVERSED.
Syllabus by the Court.
1. The creation as well as the continued existence of an estate in joint tenancy under the common law, which is allowed to exist in this jurisdiction, requires a unity of possession, a unity of interest, a unity of time and a unity of title in all holding an interest in such estate.
2. One already owning an estate in fee title in real estate may not, without the intervention of a trustee, convey directly to himself and another and thereby create in him self and such other such an estate in joint tenancy with right of survivorship as was recognized as existable at common law, and such as is now recognized as existable in this jurisdiction.
3. Section 76-109, Comp.St.1929, commonly known as " the intent statute," relates only to rules of construction, and does not enlarge or limit, or in any way modify, any rule of substantive law that existed at the time of its passage or that thereafter has been created.
4. Undue influence resulting in a given act arises usually from deceit or fraud, and its existence is established when it is clearly shown that the opportunity to exercise it existed, that an attempt to exercise it was designedly made, and that its effect upon its victim was such as to cause such act to be the result of such influence and not to flow from the exercise of his free deliberate will.
5. Evidence examined and held to necessitate a finding of the existence of undue influence.
Appeal from District Court, Sarpy County; Wilson, Judge.
Action by Elizabeth McKulsky Stuehm and others against Lillian Danford Mikulski to set aside a deed on ground of undue influence. From a decree that the deed was not procured by undue influence and that it conveyed to the defendant and the grantor an undivided one-half interest in fee as tenants in common with no right of survivorship, the defendant appeals, and the plaintiffs cross-appeal.
Decree reversed, and cause remanded, with instructions to enter a decree cancelling the deed.
O'Sullivan & Southard and Joseph E. Strawn, for appellant.
Ritchie, Swenson & Welpton and Bernard E. Vinardi, contra.
Edwin Vail, Frank D. Williams, R. O. Williams, Lewis R. Ricketts, Perry W. Morton and H. J. Whitmore, amici curiae.
OPINION
Nine children of George Mikulski, Sr., deceased, brought this action in equity in the district court for Sarpy county against Lillian Danford Mikulski, widow of said George Mikulski, Sr., to set aside a deed executed by said George Mikulski, Sr., to himself and said defendant. This deed, dated March 7, 1938, and recorded the second day thereafter, purports to convey the south half of the southeast quarter of section 6 and the north half of the northeast quarter of section 7, all in township 13 north, range 13 east of the 6th P. M., in Sarpy county, Nebraska, to George Mikulski, Sr., and the defendant, Lillian Danford Mikulski, husband and wife, "as joint tenants, and not as tenants in common." Among the reasons assigned for cancelation of this deed by the plaintiffs in their petition are that such deed was procured by undue influence exercised by the defendant upon said George Mikulski, Sr., and that such deed, even if not procured by undue influence, failed to convey any title to the grantees therein on account of its form and substance. The trial court found and decreed that the deed was not procured by undue influence, and that its legal effect was to convey to each of the two grantees an undivided one-half interest in fee as tenants in common with no right of survivorship. The defendant has perfected an appeal to this court and the plaintiffs have perfected a cross-appeal.
Several members of the bar have filed briefs amici curiae solely upon the question of what estate, if any, the deed involved would create in the grantees. The form of this deed, when executed without consideration and without reference to, and not for the purpose of carrying out, any contract that specified the characteristics of the estate intended to be created, raises a question new to this jurisdiction. Its decision is appropriate.
Long prior to the execution of this deed and at the time of its execution, George Mikulski, Sr., was the sole owner of the fee title to the land involved. The sole grantors in the deed as well as the sole grantees were the fee owner and his wife. Both the conveying clause and the habendum clause recite that the land is conveyed to the grantees as joint tenants and not as tenants in common. Furthermore, the deed recites, in effect, that it is the intent of the parties that in the event of the death of one grantee the other shall become invested with the fee simple title. That the parties to the deed intended to create a joint tenancy with right of survivorship as such estate was known at common law cannot logically be questioned. Is a deed of such a character capable of conveying an estate in joint tenancy with right of survivorship as such estate existed at common law is the question involved.
A solution of this question involves a consideration of the exact nature of such an estate. An attempt to define such an estate by the words of one sentence would be of little aid to an understanding of its nature. To detail some of the factors that must exist while such an estate exists will be of more aid. The law books seem to define such an estate as hereafter stated. Such an estate must be created in two or more persons at the same time by the same conveyance, and the holders of such an estate must be given an equal and like interest therein and be given equal and like right to possession of the corpus of the estate. That there must be a unity of possession, a unity of interest, a unity of time and a unity of title in the holders of such an estate in order for it to exist is one statement that is often used in law books to express its nature. Any act which divests the interest of a portion of the holders of their estate during their lifetime, such as a conveyance by such portion, or a sale of the interest of such portion under execution, operates as, what in the law is called, a severance of the estate of such portion. The four unities heretofore listed must not only come into being with the creation of such an estate, but must also continue to exist while the estate exists, and the destruction of any one of them as to all holders will destroy the estate, even though all holders still live. For cases dealing generally with the nature of a joint tenancy, see 33 C. J. 904; Fleming v. Fleming, 194 Iowa 71, 174 N.W. 946; Staples v. Berry, 110 Me. 32, 85 A. 303; 2 Blackstone, 180; 1 Tiffany, Real Property (2d ed.) 625.
In line with statements made in the above discussion of the nature of an estate in joint tenancy as known at common law with right of survivorship, it has been held that one of the owners of such an estate may acquire the interest of the others by adverse possession (Smith v. Hogg, 195 Ky. 257, 242 S.W. 354); that upon the death of one of two cotenants holding such an estate, the survivor takes the entire fee free from the debts of the deceased cotenant (Wood v. Logue, 167 Iowa 436, 149 N.W. 613, Ann. Cas. 1917B, 116). We do not intend that any statement made in the above discussion of the nature of such an estate shall be a holding that any one statement therein contained is the law of this state. Such discussion is merely for the purpose of considering the nature of the estate under discussion, as such estate was known at common law.
It will be remembered that this court has held that estates in joint tenancy as they existed at common law have not been abrogated by statute in this state. Sanderson v. Everson, 93 Neb. 606, 141 N.W. 1025. Under the common law, one could not convey real estate to himself. No statute of this state has changed such rule. In the absence of legislative enactment we are not ready to say, even in order to appear "modernistic," that one holding a fee title as an individual in real estate may effectively, and without the intervention of others, convey such real estate to himself as an individual with restrictions upon his right of alienation, or so as to change the nature of his estate. In order for an estate in joint tenancy as known at common law with right of survivorship to have been created by the deed involved in this case, George Mikulski, Sr., either had to convey to himself, and also in so doing to change the nature of his estate, or such estate must have come into being without the required unity of time or title. The defendant urges that the common-law rule that prevented one holding real estate in fee from conveying to himself and another and creating a joint tenancy is archaic, and that the reason for its existence has ceased to exist. To preserve the nature of various estates that the law allows to exist could not be archaic. To support this contention the defendant cites the following cases: Currier v. Teske, 84 Neb. 60, 120 N.W. 1015, and cases therein cited on the point under discussion. In each of these cases the question of the validity of a deed of land in fee direct from a husband to his wife without the intervention of a trustee was involved. Such a deed may convey a valid fee title, although it could not at common law, for the reason that the wife was...
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