HAMMOND v. McARTHUR (1946)

Respondent correctly states the only question to be determined by this appeal as follows: ‘Does a conveyance by one joint tenant to the other joint tenant of a life estate in the joint tenancy property result in the severance of the joint tenancy so that thereafter said parties become tenants in common as to the fee simple title, each owning an undivided one-half interest in said property?’

Decedent and respondent owned real property as joint tenants. In October, 1941, respondent conveyed to decedent ‘a full life estate together with all rents, issues and profits in and to’ the property. Upon the death of decedent an administrator of her estate was appointed and this action was brought to quiet title to an undivided one-half interest in the property on the theory that the conveyance of the life estate destroyed the joint tenancy and that from the date of the deed conveying the life estate the parties were tenants in common. Respondent contends that notwithstanding the conveyance the joint tenancy continued until the death of decedent, whereupon it terminated and respondent became the owner of the entire property. Judgment was rendered in favor of defendant and plaintiff appeals.

The requisites for the creation, maintenance and continuation of a joint tenancy estate have been well established. A joint tenancy is a joint interest owned by two or more persons in equal shares by a title created by a single will or transfer or by transfer from a sole owner to himself and others, when expressly declared in the will or transfer to be a joint tenancy. Civil Code, sec. 683. Four unities are are necessary to constitute a joint tenancy: unity of interest, unity of title, unity of time, and unity of possession. McDonald v. Morley, 15 Cal.2d 409, 412, 101 P.2d 690, 129 A.L.R. 810; Siberell v. Siberell, 214 Cal. 767, 771, 7 P.2d 1003. When one of these unities is destroyed the joint tenancy is destroyed and a tenancy in common succeeds it. Reiss v. Reiss, 45 Cal.App.2d 740, 747, 114 P.2d 718. A joint tenancy may be broken by a conveyance from one joint tenant to a third party. Tilden v. Tilden, 81 Cal.App. 535, 542, 254 P. 310; Green v. Skinner, 185 Cal. 435, 438, 195 P. 60; Delanoy v. Delanoy, 216 Cal. 23, 26, 13 P.2d 513; Young v. Hessler, 72 Cal.App.2d 67, 69, 164 P.2d 65. A deed by the grantee of the joint tenant reconveying title to the latter does not reestablish the joint tenancy. Szymczak v. Szymczak, 306 Ill. 541, 138 N.E. 218, 220. A joint tenancy may be severed by a conveyance from one joint tenant to the other. Hiltbrand v. Hiltbrand, 13 Cal.App.2d 330, 333, 56 P.2d 1292; Overton v. Lacy, 22 Ky. 13, 17, 6 T. B. Mon. 13, 17, 17 Am.Dec. 111.

The rights of a joint tenant are different from those of a life tenant. One of the attributes of a joint tenancy is that the joint tenants have an equal right to possession of the property (Swartzbaugh v. Sampson, 11 Cal.App.2d 451, 454, 54 P.2d 73), and if one be out of possession he can recover no more than the right to be let into joint possession with his joint tenant. Noble v. Manatt, 42 Cal.App. 496, 497, 183 P. 823. Another attribute is that each joint tenant is entitled to an equal share of the income. On the other hand, a life tenant is entitled to exclusive occupancy of the property and is entitled to receive the entire net income. Civil Code, sec. 818; Estate of Gartenlaub, 185 Cal. 375, 383, 197 P. 90, 24 L.R.A. 1; Estate of Duffill, 180 Cal. 748, 756, 183 P. 337.

Previously to the execution of the deed by respondent conveying a life estate in her interest in the property to decedent all the necessary unities existed and the parties were entitled to joint possession of the property and to an equal division of the income. The conveyance of the life estate enlarged the rights of decedent to the extent that during her life she became entitled to exclusive possession and to all the income. Respondent's rights in the property were correspondingly abridged. All the unities were annulled. During the lifetime of decedent she became possessed of a greater interest in the property than that of respondent; the title was no longer the same as when the joint tenancy was created; the unity of time was destroyed by the fact that respondent was divested of title to her interest except her right as remainderman; decedent was entitled to possession of the property and to the income therefrom to the exclusion of respondent. The severance of the unities destroyed the joint tenancy and created a tenancy in common. At the death of decedent her life estate in the property terminated, and respondent's title to her original one-half interest became vested in her as remainderman, not as a joint tenant.

Since the parties were tenants in common, decedent's interest passed to her heirs and the administrator of the estate was entitled to a decree quieting title to an undivided one-half interest in the property.

Judgment reversed with directions to enter a judgment in favor of plaintiff as prayed in his complaint.

WILSON, Justice.

MOORE, P. J., concurs.