Therrien v. Therrien.

• Decision Date: 02 April 1946
• Docket Number: No. 3575.,3575.
• Citation: 46 A.2d 538
• Parties: THERRIEN v. THERRIEN.
• Court: New Hampshire Supreme Court

46 A.2d 538

THERRIEN

v.THERRIEN.

No. 3575.

Supreme Court of New Hampshire.

April 2, 1946.

Transferred from Superior Court, Strafford County; Leahy, Judge.

Petition by Edward Therrien against Alcide N. Therrien, administrator of the estate of Marie Louise Therrien, deceased, and others, for a declaratory judgment to determine the construction and validity of a warranty deed under seal. The ‘question of tenancy created by the deed’ was transferred by the trial judge without ruling.

Judgment for plaintiff.

Petition, for a declaratory judgment, R.L. c. 370, § 20, to determine the construction and validity of a warranty deed under seal from Marie Louise Therrien to her husband, the plaintiff. The pertinent part of the granting clause reads: ‘To be held by him with this grantor in joint tenancy with full rights of ownership vesting in the survivor’; the habendum clause, omitting the formal parts thereof, ‘to him the said grantee as joint tenant. * * *’

The defendants are the children and heirs of Marie Louise Therrien and the administrator of her estate. The minor children and heirs are represented by a guardian ad litem who joins with the other defendants in the prayer for a construction of the deed. The ‘question of tenancy created by said deed’ was transferred by Leahy, J., without a ruling.

Cooper, Hall & Grimes, of Rochester (Burt R. Cooper, of Rochester, orally), for plaintiff.

Guy Smart, of Rochester, guardian ad litem, for minor heirs, furnished no brief.

KENISON, Justice.

In the absence of a contrary public policy or prohibitory legislation express or implied, it is the rule in this State that the expressed intention of the grantor will override, whenever possible, purely formalistic objections to real estate conveyancing based on shadowy, subtle and arbitrary distinctions and niceties of the feudal common law. Adequate support for this constructional rule from respected sources is not lacking. ‘It has been many years since the technicalities of real estate conveyancing have been much regarded here. Given an instrument signed and under seal, all the rest is determined according to the manifest intent of the parties. The interest created is that which the parties intended to create, without regard to rules or titles coming down from feudal times. Cole v. Winnipisseogee Lake Cotton & Woolen Mfg. Co., 54 N.H. 242; Kendall v. Green, 67 N.H. 557, 42 A. 178; Weed v. Woods, 71 N.H. 581, 53 A. 1024.’ Peaslee, C. J., in Newmarket, etc., Co. v. Nottingham, 86 N.H. 321, 324, 168 A. 892, 895. ‘It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.’ Holmes, Collected Legal Papers (1920) 187. ‘Even in the case of real estate, where the common-law presumption as to joint tenancy has been abolished by statute [R.L. c. 259, § 17], the language used * * * will be interpreted in the light of the circumstances surrounding the transaction.’ Dover, etc., Bank v. Tobin's Estate, 86 N.H. 209, 210, 166 A. 247, 248.

The words ‘joint tenancy with full rights of ownership vesting in the survivor’ and ‘joint tenant’ clearly express an intention to create a joint tenancy in the plaintiff and his wife and are so construed. If this conveyance had been to two or more persons, section 17 of chapter 259 of the Revised Laws would have compelled the same result, for ‘The purpose of the statute is not to forbid or prevent the creation of estates in joint tenancy, but to make certain that effect is given to the intention of the grantor.’ Roaf v. Champlin, 79 N.H. 219, 221, 107 A. 339, 340.

There remains the more difficult question of the validity of this deed to create a joint tenancy in the plaintiff and his wife. At common law such a deed lacks the fourfold unities of interest, title, time and possession and is ineffective to create a joint tenancy. 2 Bl.Comm. 179-182. This rule persists today in several jurisdictions, although no attempt is made to justify either its present or past existence. 4 Thompson, Real Property, Perm.Ed., § 1776; 2 Tiffany, Real Property, 3d Ed., §§ 418, 421. As a result of this doctrine, there has been a practice of accomplishing the same result by the owner of the property conveying to a third party (frequently the stenographer or scrivener writing the deed) who immediately reconveys to the husband and wife as joint tenants. See O'Grady v. Deery, N.H., 45 A.2d 295. This...