Opinion
No. 16662
5-9-1956
William Branch RILEY, also known as William Brand Riley, Plaintiff and Respondent, v. Hallie Ford TURPIN, Defendant and Appellant. *
Russell T. Ainsworth, San Francisco, for appellant. Hilary H. Crawford, Hilary H. Crawford, Jr., San Francisco, for respondent.
William Branch RILEY, also known as William Brand Riley, Plaintiff and Respondent,
v.
Hallie Ford TURPIN, Defendant and Appellant. *
As Corrected May 14, 1956.
Rehearing Denied June 8, 1956.
Hearing Granted July 5, 1956.
Russell T. Ainsworth, San Francisco, for appellant.
Hilary H. Crawford, Hilary H. Crawford, Jr., San Francisco, for respondent.
AGEE, Justice pro tem.
On February 24, 1941, Arthur Brand and Hallie Turpin entered into a written agreement whereby the home owned by Brand would thereafter be held by them in joint tenancy, subject to the condition that if William Riley (Brand's nephew) survived both of them the property 'shall vest in William Branch Riley, in fee simple, but in the event of the death fo William Branch Riley, dying before both of the parties to this Agreement, then the survivor of the Party of the First Part [Brand] and the Party of the Second Part [Mrs. Turpin] shall take all the property in fee simple absolute.'
Brand died on May 6, 1947, and Mrs. Turpin has lived on the property 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 Riley made formal demand upon Mrs. Turpin to pay the taxes but she paid nothing. On May 20, 1953, Riley paid enough on the taxes to prevent a final forfeiture. Rev. & Tax Code, § 3613.
On July 17, 1953, Riley filed suit against Mrs. Turpin for partition and recovery of the taxes paid by him. The lower court granted an interlocutory judgment and ordered the property sold.
Defendant's motion for a new trial was denied and she appeals from the whole of the interlocutory judgment.
Preliminarily, it should be noted that this court is not bound by the trial court's construction of the written agreement when, as here, its interpretation depends solely upon the languagr of the instrument itself. Stevenson v. County of San Diego, 26 Cal.2d 842, 844, 161 P.2d 553.
Appellant contends that, under the agreement, respondent did not acquire any interest whatsoever in the property because the parties thereto agreed to hold it as joint tenants with the right of survivorship in themselves, and any exception in the agreement to this is irreconcilable and repugnant to a joint tenancy estate and therefore void. This being so, appellant continues, respondent was a mere volunteer in paying the taxes and, furthermore, has no right to bring this or any other action with regard to the property. Appellant cites McDonald v. Morley, 15 Cal.2d 409, 101 P.2d 690, 129 A.L.R. 810, and California Trust Co. v. Anderson, 91 Cal.App.2d 832, 205 P.2d 1127.
The McDonald case [15 Cal.2d 409, 101 P.2d 691], involves an agreement between husband and wife that if one should die, then his or her interest in certain real property held by them in joint tenancy 'shall become the property of their daughter.' The Supreme Court held that this was entirely inconsistent with the survivorship characteristic of an estate in joint tenancy and that the agreement made the husband and wife tenants in common with separate descendible interests. In the California Trust case, the property (mainly stocks) was held in joint tenancy by a mother, son and daughter. The son and daughter agreed in writing between themselves that if their mother should predecease both of them, the property in question would be divided equally between them. Thereafter, the mother died, and, two months later, the daughter died. In the ensuing litigation, the brother claimed all of the property as the surviving joint tenant. It was held that after the mother's death the property was held by the son and daughter in equal shares, as tenants in common, and that their agreement had terminated the joint tenancy between them because it had destroyed the right of survivorship.
Both of these two cases involve joint tenancy in the entire interest in the property. In the instant case the joint tenancy involves only a life estate, the life being that of the survivor of the two parties, Brand and Mrs. Turpin. A joint tenancy may, of course, exist in all kinds of property, 13 Cal.Jur.2d p. 299; O'Neill v. O'Malley, 75 Cal.App.2d 821, 824, 171 P.2d 907, and it has been held from an early date that joint tenancies may be created in less than fee estates (2 Blackstone's Commentaries, 181). In the instant case the two parties intended and so provided that the survivor should have the property until his or her death, and that the remainder would go to and be the property of the survivor as between themselves and Riley. In other words, Brand and Mrs. Turpin had a life estate in joint tenancy and Brand, Mrs. Turpin and Riley each had a contingent remainder, dependant upon surviving the other two. Although not involving the instant situation, the following comment in Zeigler v. Bonnell, 52 Cal.App.2d 217, 220, 126 P.2d 118, 119, is of interest: '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.'
In short, neither Brand nor Mrs. Turpin agreed to anything repugnant to their joint tenancy in the life estate created by them nor did either of them transfer any interest therein to Riley or anyone else. As to effect of such a transfer by one joint tenant, see Green v. Skinner, 185 Cal. 435, 438, 197 P. 60.
Appellant cites McGarrigle v. Roman Catholic Orphan Asylum, 145 Cal. 694, 79 P. 447, 1 L.R.A.,N.S., 315; and Litten v. Warren, 11 Cal.App.2d 635, 54 P.2d 39. In the first case, the grantor deeded a life estate to McGarrigle and stated in the deed that it was her 'purpose' that the asylum should have the property after McGarrigle's death. But, as the court pointed out, the deed contained 'no operative words of grant' and was therefore a mere statement of intention to do something in the future with the reversion and this was never done. In the Litten case, the court said 11 Cal.App.2d at page 637, 54 P.2d at page 40: 'Where there is an asserted modifying or limiting clause in a deed, if such clause be of doubtful import, the fee contemplated by the the granting clause of the deed will not be cut down.' (Emphasis added.) Thus a mere statement of 'purpose' or 'intent,' particularly where it is expressed in doubtful language, will not create any estate. From what has already been said regarding the agreement in the instant case, these two decisions are not in point because Riley's contingent remainder was clearly provided for and was not just a statement of intent or purpose by the grantors. While the law may favor vested future interests over contingent remainders, Williams v. Williams, 73 Cal. 99, 14 P. 394, contingent remainders are clearly recognized by the law of this state. (See Civ.Code §§ 769 and 773.)
Formerly, a cotenant had to be in possession in order to bring a partition action. However, in 1919, section 752 of the Code of Civil Procedure was amended so as to eliminate this requirement. The effect of this amendment was discussed in Geary v. De Espinosa, 1921, 51 Cal.App. 52, 196 P. 90, where plaintiff and fifteen others owned the remainder in real property as tenants in common. Plaintiff's right to bring the partition suit against the other remaindermen was upheld even though the life tenant was in possession and they were not. The question did not arise as to whether a remainderman could bring such a suit against the life tenant because the life tenant, who was joined as a defendant, consented to the partition in her answer. However, the case does stand for the proposition that respondent herein, as a remainderman, can maintain this action against Mrs. Turpin, at least in her capacity as the other remainderman.
Once the right to bring the action is established, as it is here, the question as to what the court is entitled to do is covered by section 763 of the Code of Civil Procedure, which provides: 'If it appears by the evidence, whether alleged in the complaint or not, that the property or any part of it is so situated that partition cannot be made without great prejudice to the owners, or where property is subject to a life estate and the remainder is a contingent remainder, the court may and in the latter case must order the sale thereof; * * *.' (Emphasis added.) Here, the lower court made an express finding from the evidence that the property could not be partitioned without great prejudice to the owners. It also found respondent to be the owner of a contingent remainder in the property; so that, under the first finding just mentioned, a court may order a sale, and under the second it must order such sale.
However, the question still remains as to what is included in the 'property' to be sold. Is it the entire fee or just the remainder which is subject to sale?
After Brand's death, the property was, in effect, divided into a life estate in Mrs. Turpin and the remainder in her and Riley, as joint tenants. While we have seen that Riley can maintain this action against his fellow joint tenant as to the remainder, there is no case in California allowing such action by a remainderman against a life tenant.
Section 752 of the Code of Civil Procedure provides for those who are entitled to bring actions for partition of real property. In 1943, the following provision was added to this section: '* * * or where real property is subject to a lien on a parity with that on which the owner's title is based, by the owner or by the holder of such lien,' etc. (Emphasis added.) Riley had a lien on the life estate of Mrs. Turpin for the amount of taxes paid by him. The obligation to pay such taxes was upon her as the life tenant. Civ.Code § 840. As we have heretofore stated, Riley was not a volunteer; he had an interest in the property, and his payment of taxes which had become delinquent gave him a lien to this extent upon Mrs. Turpin's life estate. Willmon v. Koyer, 168 Cal. 369, 143 P. 694, L.R.A.1915B, 961. Under the 1943 amendment Riley therefore had a right to maintain an action in partition as to Mrs. Turpin's life estate. We conclude that it was proper to order the sale of the property as a whole.
Appellant's motion for a new trial on the ground of newly discovered evidence was supported by her attorney's affidavit that after the trial he had discovered a recorded deed by which Brand had conveyed his interest in the property to Riley's father and that the latter was therefore a necessary party in the partition action. Riley's father executed a counter-affidavit in which he denied any delivery of the deed, alleged that he had recorded it without realizing that there had been no legal delivery of it to him, and that, although Brand in his will left everything to him, and named him executor, he did not include any interest in the property in the assets of the esate. Riley's father further disclaimed any interest in the property. A quitclaim deed was executed by him and recorded before the new trial was ruled upon. The trial judge evidently concluded that the father had never acquired any interest in the property and therefore denied a new trial.
The interlocutory judgment contains nine paragraphs, each of which is herewith summarized.
Paragraph 1 orders a mony judgment totaling $1,213.44 in favor of respondent and against appellant, this being for taxes, plus interest, paid by him to prevent a final forfeiture. All that respondent is entitled to in this respect is a lien against the appellant's interest in the property, to be paid out of the appellant's share of the proceeds of sale. Willmon v. Koyer, supra.
Paragraph 2 declares respondent to be a contingent remainderman and, in the event of appellant's death before his, the owner in fee simple.
Paragraph 3 declares that appellant has a life estate in the property and a contingent remainder in the fee, the contingency being her survival of respondent.
Paragraph 4 allows appellant his attorney fees in the sum of $250 and his costs of partition. This was properly stricken on motion for a new trial. Broome v. Broome, 179 Cal. 638, 645, 178 P. 525. Harrington v. Goldsmith, 136 Cal. 168, 170, 68 P. 594.
Paragraph 5 declares that partition is necessary; that a physical partition cannot be had without great prejudice to the parties; that, therefore, it is necessary that said property be sold at partition sale.
Paragraph 6 names the referee, the parties having consented to one referee instead of three, Code Civ.Proc. § 763, and directs the referee to sell according to law. Code Civ.Proc. § 775.
Paragraph 7 then orders the referee, after the sale, to report to the court for confirmation.
Paragraph 8 provides that the referee's fee, disbursements and expenses shall be determined by the court at the time of such confirmation.
Paragraph 9 provides for the distribution of the proceeds of sale. First, provision is made for payment of the referee's fee and expenses; second, for payment of respondent's attorney fees and costs of partition; third, for apportionment of the balance between appellant and respondent on the basis of their life expectancies, which were correctly found to be 5.7 years and 24.43 years, respectively, but which, incidentally, were incorrectly calculated as to the resulting percentages; then the judgment provides that appellant's share be surcharged with the sum of $556.68 still owing under the five-year plan plus any penalties and interest thereon, and any additional taxes which fall due between the interlocutory judgment and the sale; fourth, that the $1,213.44 (heretofore referred to) plus interest from the date of the interlocutory judgment be paid to respondent out of appellant's share; fifth, that the balance, if any, remaining out of appellant's share be paid to her.
The fundamental error in paragraph 9 of the judgment is that the trial court did not, in determining the respective shares of the parties, take into account the value of the life estate of appellant. The approtionment was made on the basis of each owning a contingent remainder, the contingency being survival of the other. But appellant had more than a contingent remainder. She had a life estate in herself alone.
Section 778 of the Code of Civil Procedure provides: 'The person entitled to a tenancy for life, or years, whose estate has been sold, is entitled to receive such sum as may be deemed a reasonable satisfaction for such estate, and which the person so entitled may consent to accept instead thereof, by an instrument in writing, filed with the Clerk of the Court.' Section 779 of the Code of Civil Procedure provides that if such consent (to a reasonable amount) be not given, 'the Court must ascertain and determine what proportion of the proceeds of the sale, after deducting expenses, will be a just and reasonable sum to be allowed on account of such estate * * *.' (Emphasis added.)
In ascertaining the value of a life estate, or a remainder contingent upon survivorship, the use of standard mortality tables is proper. 68 C.J.S., Partition, § 219, p. 354.
From what has been said, it is clear that this action must be returned to the trial court for an evaluation by it of the interest of each of the parties in proportion to that of the other, taking into account that appellant has a life estate as well as a contingent remainder and also using the mortality tables for whatever assistance may be afforded.
At the time of confirmation of sale, the final judgment should first determine and allow the fee and expenses of the referee in accordance with section 768 of the Code of Civil Procedure. Then, any attorney fees and costs of partition, as provided by section 796 of the Code of Civil Procedure, should be fixed and ordered paid in accordance with said section. The balance then remaining from the proceeds of sale should then be apportioned between the parties as determined by the trial court in accordance with this decision, subject to the following charges, which are to be paid out of appellant's share: the respondent's lien of $1,213.44 plus interest at 7 per cent from July 9, 1954; the sum of $556.68 still owing under the five-year plan plus any penalties and interest thereon; any additional taxes, penalties or interest thereon which respondent has paid in order to prevent a final forfeiture; and any additional taxes, interest and penalties thereon, which fall due and are payable up to the time of sale.
The interlocutory judgment heretofore rendered is reversed, with instructions to the trial court to proceed to take the necessary steps to render and cause to be entered an interlocutory judgment in accordance with this decision. The parties are to bear their own respective costs upon this appeal.
PETERS, P. J., and BRAY, J., concur. --------------- * Opinion vacated 301 P.2d 834.