Tenhet v. Boswell

CourtUnited States State Supreme Court (California)
Citation18 Cal.3d 150,554 P.2d 330,133 Cal.Rptr. 10
Decision Date04 October 1976
Docket NumberS.F. 23356
Parties, 554 P.2d 330 Hazel TENHET, Plaintiff and Appellant, v. W. W. BOSWELL, Jr., Defendant and Respondent. In Bank

Moran, Stringham & Rogers and William J. Kadi, Tulare, for plaintiff and appellant.

James G. McCain, Corcoran, for defendant and respondent.

MOSK, Justice.

A joint tenant leases his interest in the joint tenancy property to a third person for a term of years, and dies during that term. We conclude that the lease does not sever the joint tenancy, but expires upon the death of the lessor joint tenant.

Raymond Johnson and plaintiff Hazel Tenhet owned a parcel of property as joint tenants. 1 Assertedly without plaintiff's knowledge or consent, Johnson leased the property to defendant Boswell for a period of 10 years at a rental of $150 per year with a provision granting the lessee an 'option to purchase.' 2 Johnson died some three months after execution of the lease, and plaintiff sought to establish her sole right to possession of the property as the surviving joint tenant. After an unsuccessful demand upon defendant to vacate the premises, plaintiff brought this action to have the lease declared invalid. The trial court sustained demurrers to the complaint, and plaintiff appealed from the ensuing judgment of dismissal.


Before addressing the primary issue, we must determine whether the appeal should be dismissed because of the 'one final judgment' rule. The problem arises from the trial court's failure to dispose of all five causes of action set forth in the third amended complaint. The court granted a motion to strike the fourth and fifth causes and sustained demurrers to the second and third causes without leave to amend. But the court made no express ruling on the first cause of action, which sought declaratory relief and damages.

Generally, an appeal may be taken only from the final judgment in an entire action. (Gombos v. Ashe (1958) 158 Cal.App.2d 517, 520--523, 322 P.2d 933; 6 Witkin, Cal.Rpocedure (2d ed. 1971) Appeal, § 36, p. 4050.) A party may not normally appeal from a judgment on one of his causes of action if determination of any remaining cause is still pending. (U.S. Financial v. Sullivan (1974) 37 Cal.App.3d 5, 11, 112 Cal.Rptr. 18; Gombos v. Ashe, supra, 158 Cal.App.2d at pp. 520--523, 322 P.2d 933.)

However, the rule has been modified in cases in which the trial court's failure to dispose of all causes of action results from inadvertence or mistake rather than an intention to retain the remaining causes of action for trial. The leading case of Gombos v. Ashe is a prime example. There, plaintiffs injured in an automobile accident filed a complaint setting forth two causes of action seeking compensatory damages and a third praying for punitive damages. The trial court sustained a demurrer on the punitive damage issue, and the case went to trial on the compensatory damage causes. Plaintiffs won a jury verdict, but the judgment failed to dispose of the punitive damage issue. On plaintiffs' appeal from the ruling on that issue, the court, speaking through Justice Peters, observed that the order sustaining the demurrer was not a final judgment and thus not appealable. The normal procedure, noted the court, would be to dismiss the appeal with instructions to the trial court to amend its judgment by disposing of the punitive damage issue. However, the court continued, 'That would then require the parties to rebrief the question as to whether the (punitive damage) cause of action stated a cause of action--the very point that is fully briefed in the briefs now on file. This seems to be an unnecessarily dilatory and circuitous method of reaching a proper result. It should not be adopted unless it is the only proper method of reaching a fair result.' (Id. at p. 524, 322 P.2d at p. 937.)

As an alternative, the Gombos appellate court itself amended the judgment on the compensatory damage verdict to include a paragraph dismissing the punitive damage cause of action. (Ibid.) The judgment on the jury verdict thus became final, and the court could properly hear the appeal. This method of preserving appeals has been routinely followed in subsequent cases. (See, e.g., Oakes v. Suelynn Corp. (1972) 24 Cal.App.3d 271, 281, 100 Cal.Rptr. 838 (where the trial court, in a damage action, properly struck a conversion count but inadvertently failed to dismiss that count in rendering judgment on a jury verdict on a separate count, judgment was amended to include such dismissal); Tsarnas v. Bailey (1960) 179 Cal.App.2d 332, 337, 3 Cal.Rptr. 629 (where the intention of the trial court was clear from its judgment on a complaint, judgment was amended to include disposition of a cross-complaint in the same action).)

The instant case also calls for application of the Gombos procedure. The trial court, apparently believing that a cause of action seeking declaratory relief could not be disposed of by judgment on the pleadings (but see 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 731, [18 Cal.3d 155] pp. 2351--2352), made no express ruling on the first cause of action. However, the court left no doubt that it considered plaintiff's position insupportable. It sustained demurrers on the other causes of action based on identical facts, and stated, 'The Court agrees with . . . defendant to the effect that a co-tenant may make a valid lease to the extent of his own interest even though the lease is to commence on the death of the lessor.' In these circumstances little would be gained by ordering the court to rule on the first cause of action, for the outcome is preordained. Not only is the position of the court clear, but both sides have briefed the primary issues, and both urge us to decide the case. We shall therefore amend the judgment by ruling in favor of defendant on the first cause of action seeking declaratory relief and damages. We now turn to the merits of the judgment as thus amended.


An understanding of the nature of a joint interest in this state is fundamental to a determination of the question whether the present lease severed the joint tenancy. Civil Code section 683 provides in part: 'A joint interest is one owned by two or more persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy. . . .' This statute, requiring an express declaration for the creation of joint interests, does not abrogate the common law rule that four unities are essential to an estate in joint tenancy: unity of interest, unity of time, unity of title, and unity of possession. (See Hammond v. McArthur (1947) 30 Cal.2d 512, 514, 183 P.2d 1; McDonald v. Morley (1940) 15 Cal.2d 409, 412, 101 P.2d 690; 2 Blackstone, Commentaries * 180--182.)

The requirement of four unities reflects the basic concept that there is but one estate which is taken jointly; if an essential unity is destroyed the joint tenancy is severed and a tenancy in common results. (Swartzbaugh v. Sampson (1936) 11 Cal.App.2d 451, 454, 54 P.2d 73; 2 Am.Law of Prop. (1952) § 6.2, p. 9.) Accordingly, one of two joint tenants may unilaterally terminate the joint tenancy by conveying his interest to a third person. (Delanoy v. Delanoy (1932) 216 Cal. 23, 26, 13 P.2d 513; Green v. Skinner (1921) 185 Cal. 435, 438, 197 P. 60.) Severance of the joint tenancy, of course, extinguishes the principal feature of that estate--the Jus accrescendi or right of survivorship. 3 Thus, a joint tenant's right of survivorship is an expectancy that is not irrevocably fixed upon the creation of the estate (Gwinn v. Commissioner of Internal Revenue (1932) 287 U.S. 224, 228, 53 S.Ct. 157, 77 L.Ed. 270 (interpreting California law)); it arises only upon success in the ultimate gamble--survival--and then only if the unity of the estate has not theretofore been destroyed by voluntary conveyance (Delanoy v. Delanoy, supra), by partition proceedings (Code Civ.Proc., § 752; Teutenberg v. Schiller (1955) 138 Cal.App.2d 18, 22, 291 P.2d 53; cf. Lazzarevich v. Lazzarevich (1952) 39 Cal.2d 48, 50, 244 P.2d 1), by involuntary alienation under an execution (Young v. Hessler (1945) 72 Cal.App.2d 67, 69, 164 P.2d 65; Zeigler v. Bonnell (1942) 52 Cal.App.2d 217, 219, 126 P.2d 118), or by any other action which operates to sever the joint tenancy.

Our initial inquiry is whether the partial alienation of Johnson's interest in the property effected a severance of the joint tenancy under these principles. It could be argued that a lease destroys the unities of interest and possession because the leasing joint tenant transfers to the lessee his present possessory interest and retains a mere reversion. (See Alexander v. Boyer (1969) 253 Md. 511, 253 A.2d 359, 365.) Moreover, the possibility that the term of the lease may continue beyond the lifetime of the lessor is inconsistent with a complete right of survivorship.

On the other hand, if the lease entered into here by Johnson and defendant is valid only during Johnson's life, then the conveyance is more a variety of life estate Pur autre vie than a term of years. Such a result is inconsistent with Johnson's freedom to alienate his interest during his lifetime.

We are mindful that the issue here presented is 'an ancient controversy, going back to Coke and Littleton.' (2 Am.Law of Prop. (1952) § 6.2, p. 10.) Yet the problem is like a comet in our law: though its existence in theory has been frequently recognized its observed passages are few. 4 Some authorities support the view that a lease by a joint tenant to a third person effects a complete and final severance of the joint tenancy. (Alexander v. Boyer (Md.1969) supra, 253 Md. 511, 253 A.2d 359, 365; 2 Am.Law of Prop. (1952) § 6.2, p. 10; Freeman on Cotenancy and Partition (2d ed. 1886) § 30; Comment (1937) 25 Cal.L.Rev. 203, 208; Swenson & Degnan, Severance of Joint Tenancies (1954) 38 Minn.L.Rev....

To continue reading

Request your trial
84 cases
  • Randle v. City and County of San Francisco
    • United States
    • California Court of Appeals
    • October 16, 1986
    ...v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at p. 921, 167 Cal.Rptr. 831, 616 P.2d 813, quoting Tenhet v. Boswell (1976) 18 Cal.3d 150, 154, 133 Cal.Rptr. 10, 554 P.2d 330.) When a judgment fails to dispose of all causes of action set forth in the complaint, an appeal need not be dismi......
  • Justus v. Atchison
    • United States
    • United States State Supreme Court (California)
    • June 8, 1977
    ...... (Tenhet v. Boswell (1976) 18 Cal.3d 150, 153, 133 Cal.Rptr. 10, 554 P.2d 330.) It is settled that the rule requiring dismissal does not apply when the case ......
  • Estate of Mitchell, E023094.
    • United States
    • California Court of Appeals
    • December 20, 1999
    ...severance of a joint tenancy transforms it into a tenancy in common by extinguishing the right of survivorship. (Tenhet v. Boswell (1976) 18 Cal.3d 150, 155, 133 Cal.Rptr. 10, 554 P.2d 330; Re v. Re (1995) 39 Cal.App.4th 91, 96, 46 Cal. Rptr.2d A joint tenant may sever a joint tenancy in re......
  • Estate of Propst, S006951
    • United States
    • United States State Supreme Court (California)
    • April 2, 1990
    ...... (4A Powell on Real Property, supra, p 618 at pp. 51-14 & 51-15.) As we observed in Tenhet v. Boswell (1976) 18 Cal.3d 150, 155-156, 133 Cal.Rptr. 10, 554 P.2d 330, "[A] joint tenant's right of survivorship is an expectancy that is not ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT