Opinion
No. 37195.
October 24, 1949.
1. Tenancies at common law — joint tenancies and tenancies in common.
The common law favored joint tenancies, so that under it a conveyance to two or more persons, not husband and wife, created a joint tenancy and if to husband and wife an estate by entirety; and to create an estate in common it was necessary to add restrictive or explanatory words showing the intention to create such an estate.
2. Tenancies under the statute — tenancies in common and joint tenancies.
Our statute reverses the rule of the common law and provides that a conveyance to two or more persons, or to a husband and wife, shall be construed to create estates in common, unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy or by entirety with the right of survivorship.
3. Deeds — construction of as to character of estate granted.
In the construction of deeds courts have no legitimate power to erase or eliminate therefrom any of the material terms thereof, and therefore cannot strike from deeds the quoted language whereby grantor conveyed unto a husband and wife, naming them, "and the survivor of them", or to a husband, naming him and to his wife, naming her, "or to survivor of them", and since there is no survivorship in a tenancy in common such deeds must be construed as conveying an estate either in joint tenancy or by entirety with right of the survivor, in either case, to take unimpaired the entire title to the described property thus conveyed.
Headnotes as approved by Roberds, J.
APPEAL from the chancery court of Claiborne County; R.W. CUTRER, Chancellor.
Drake Gage, for appellants.
I. Common law rule which would have created joint tenancy, or tenancy by entirety changed by statute. Thompson on Real Property, Sections 1775 and 1803; Section 834, Code 1942.
II. Necessary incidents for tenancy by entirety or joint tenancy exist.
The necessary incidents to the creation of joint tenancy or tenancy by the entirety at common law, and under our statute are unity of interest, unity of title, unity of time and unity of possession. All four of these unities exist in this case, and there is no contention on the part of the appellee that there has been any act on the part of any of the parties which would destroy or terminate a joint tenancy or a tenancy by the entirety, if such tenancies had been created by the deeds above mentioned.
As words which would create a joint tenancy between parties who are not husband and wife will, at common law, and in the states where tenancy by the entirety is still recognized, create a tenancy by the entirety, we will often use the words "joint tenancy" herein in the broad meaning, covering forms of tenancy where land is held jointly, and in our arguments and citations will use references to the two tenancies interchangeably, as an argument contending for one form of tenancy or another where the same words are used in creating it, will create one or the other dependent only on whether the grantees are husband and wife or not.
III. Words used in deeds under consideration are sufficient to create joint tenancy or tenancy by the entirety. Thompson on Real Property, Section 1790; Kemp v. Sutton, 233 Mich. 249, 206 N.W. 366; Mittel v. Karl, 133 Ill. 65, 23 N.E. 533; Cover v. James, 217 Ill. 309, 75 N.E. 490; Stimpson v. Batterman, 59 Mass. (5 Cush.) 153; In Re McCallum's Estate, 211 Penn. 205, 60 A. 903; Mitchell v. Frederick, 170 A. 733.
IV. In construing statutes legislative intent followed and statutes in derogation of common law strictly construed. Goosey v. Goosey, 48 Miss. 210; Citizens Lumber Co. v. Netterville, 137 Miss. 310, 102 So. 178; Shapleigh Hardware Co. v. Spiro, 141 Miss. 38, 106 So. 209; Mississippi Power Light Co. v. A.E. Kusterer Co., 156 Miss. 22, 125 So. 429; Williams v. Batson, 186 Miss. 248, 187 So. 236; Miller v. Fowler, 28 So.2d 837.
V. Construing deeds in question has created an estate with right of survivorship, only reasonable construction of intention, giving effect to entire instrument.
We do not discuss whether the deeds in question created joint tenancy or tenancy by the entirety, or whether they would have created life estates with a contingent remainder as survivor as held by the Illinois court, as under any one of these three types of estate, the entire interest would be vested in Della Wolfe, the survivor between herself and the said Willis Wolfe.
Our statute requires for the creation of a joint tenancy or tenancy in entirety, only that it manifestly appear that such a tenancy was intended. What could more manifestly evidence such an intention, than the use of the word "survivor" in the creation of the estates, as this is the main distinguishing feature between a tenancy in common on the one hand and a joint tenancy or tenancy by the entirety on the other hand. Our statute does not require, as the Illinois statute above referred to did, that not only the intention appear but that it specifically be stated that it is not to be a tenancy in common. Ours only requires that the intention appear, and we can think of no clearer way to show the intention that such an estate be created than by the use of the words as in the deeds in question, unless it should be required that the draftsmen of the instrument go into great detail and specify that it be a joint tenancy or tenancy by entirety with the right of survivorship and not a tenancy in common. We cannot see where any such lengthy and detailed statement of the estates created was intended by the legislature in the enactment of Section 834, Code 1942, particularly since said section is in derogation or revision of the common law rule regarding the creation of such estates. Had the legislature intended a requirement in creating these estates that specific and detailed words be used, it would have enacted a statute similar to the one which is cited from Illinois above.
It is only by holding the estate created to be a joint tenancy or tenancy by the entirety that any effect can be given to the use of the word "survivor" in the two deeds in question. If it were to be held that a tenancy in common to be created, as contended by the appellee, the use of this word must be entirely ignored, as survivorship has no place in a tenancy in common, and as above stated, is the main incident of the difference between a tenancy in common and a joint tenancy or tenancy by entirety. In construing the instrument effect must be given to all of the words and phrases as contained therein, as determined from an examination of the instrument, taking it as a whole if necessary, unless there should be some ambiguity in the instrument or unless it should be in derogation of some rule of law or of a statute. In these deeds there is no ambiguity, and there is no rule or law, or statute against the creation of an estate with an incident of survivorship. As our statute, Section 834, Code 1942, specifically recognizes that such an estate as an estate in joint tenancy and tenancy by its entirety can be created, where it manifestly appears that such was the intention.
Berger Callon, and Joseph E. Brown, for appellee.
In order to avoid multiple litigation and in order to clarify the confusion existing in the legal mind over the construction of conveyances to husband and wife and/or to two or more persons, and because the legislature did not look with favor on the creation of joint tenancies, a most strict adherence to exacting phraseology was required by our legislature, as evidenced by Section 834, Code 1942, which says, "All conveyances or devises of land made to two or more persons, or to a husband and wife, shall be construed to create estates in common, and not in joint tenancy or entirety, unless it manifestly appears from the tenor of the instrument, that it was intended to create an estate in joint tenancy or entirety with the right of survivorship; but this provision shall not apply to mortgages or devises, or conveyances made in trust." And this was the law of the State at the time of both conveyances to Willis Wolfe and Della Wolfe.
The Supreme Court of Mississippi has never passed on the exact question. Thus we are faced with applying the logical and natural construction of Section 834 to the deeds from the Barlands, in 1933, to Willis Wolfe and Della Wolfe, and the survivor of them, and the similar deed in 1937 from Primrose "unto Willis Wolfe and his wife, Della Wolfe, and to the survivor of them an undivided one-half interest in the land hereby conveyed and to Helen E. Wolfe Brown, the other one-half interest in said land conveyed hereby."
We contend that both of these conveyances do not manifestly show from the tenor of the instrument a certain and definite intention to create an estate in joint tenancy and entirety, and, under the normal, logical construction of said statute, such a manifest intention must exist or the conveyance shall be construed to create estates in common. Can it be said that if these two instruments were presented to any lawyer in the State of Mississippi for construction, that said attorney could give an unhesitating, clear opinion as to its meaning, and as to its effect? The answer must be in the negative. The phrase, "to Willis Wolfe and Della Wolfe and the survivor of them", is certainly not manifest.
The very fact that these instruments were not manifest to the court below is to us conclusive that they are uncertain and ambiguous, and we gain nothing by reading the numerous cases relied upon by appellants in their brief, since it does not appear that the state courts, in their rulings, were faced with a statute requiring the intention to be manifest.
Manifest was defined by the Supreme Court of Connecticut in the case of Bremmer v. Marc Edilitz Son, 174 A. 172, 174, 118 Conn. 666, as "The verb manifest means to show plainly or to make appear distinctly." The adjective manifest has as synonyms: clear, plain, evident, obvious, patent, palpable, unmistakable, conspicuous; and that is "clear", that can be seen without dimness; and that is "plain", that can be seen by anyone at a first glance without search or study; and that is "evident", that subjects more than a mental process, but no difficulty in seeing that the thing is true; while manifest is a degree stronger than evident, the mind getting the truth as by an intuition. State v. Little, W. Va., 197 S.E. 626, 627; Russell v. State, 71 Fla. 236, 71 So. 27; State v. Kaufman, S.D. 620, 108 N.W. 246; Hermance v. Ulster County Supervisors, 71 N.Y. 481, 485.
The Supreme Court of Mississippi, while not expressly defining the exact question presented here, did have this to say concerning the wording of conveyances to two or more parties, in Doran v. Beale, 106 Miss. 305, 63 So. 647. In that case the conveyance was made "unto Jane R. Beale of Champaign, Illinois, an undivided 1/5 interest and unto Florence Beale Doran and Ed. J. Beale jointly, both of Champaign, Illinois, an undivided 4/5 interest in and to said lands." It was contended unsuccessfully that the use of the word "jointly" created an estate in entirety and in joint tenancy, but the Supreme Court, speaking through Chief Justice Smith, said: "It is argued that by the use of the word `jointly' immediately following the designation of Florence Doran and Ed. J. Beale as grantees in the deed from Cox and his wife, they were created joint tenants with the right of survivorship. In this counsel are in error. It may be that prior to the enactment of our statute, which now constitutes Section 2770 of the Code of 1906, the use of the word in this connection would have conferred an estate in joint tenancy, with the right of survivorship, for every presumption then was in favor of the creation of joint tenancy by the conveyance of an estate to two or more persons without the clear indication of an intention that it should be divided among them; but this statute reversed this presumption, and such a conveyance must now, `be construed to create estates in common', and not in joint tenancy or entirety, unless it manifestly appears from the tenor of the instrument, that it was intended to create an estate in joint tenancy or entirety with the right of survivorship'; . . . The use of the word `jointly' in this deed is consistent with an intention to simply convey the interest designated to both of the two grantees, and it cannot be said, that by its use, the grantor manifestly intended to create a joint tenancy, or entirety with the right of survivorship. Had he desired so to do, it would have been so easy to have said so in expressed words, citing Muston v. Gardner, 203 Ill. 284, 67 N.E. 779." Compare Peg v. Peg, 165 Mich. 228, 130 N.W. 617, 3 L.R.A.N.W. 166 Ann. Cas. 1912 C 925; Wright v. Knapp, 183 Mich. 656, 150 N.W. 315; Walker's Estate, 340 Pa. 13, 16 A.2d 28, 132 A.L.R. 628.
In a deed dated November 17, 1933, executed by Barland Brothers, the conveying clause reads ". . . do hereby convey and warrant unto Willis Wolfe Della Wolfe and the survivor of them . . ." a certain lot in Port Gibson, Mississippi.
On September 16, 1937, Claude L. Primrose executed a deed to the same grantees to a one-half undivided interest in one hundred and eighty acres of land in Claiborne County, Mississippi, the granting clause of which reads ". . . do hereby convey and warrant unto Willis Wolfe and his wife, Della Wolfe, and to the survivor of them . . .", describing the land.
The grantees were man and wife when both deeds were executed, and so remained until the death, intestate, of Willis Wolfe on April 4, 1946. His heirs at law were and are Della Wolfe, his widow, and their two daughters and a son. Della Wolfe, the survivor of the two grantees, claims entire ownership of the lot and the one-half interest in the land by virtue of survivorship. In other words, she says the two deeds created in the grantees an estate in joint tenancy or entirety, and by right of survivorship she is now vested with the whole estate. She and her two daughters filed the bill herein asserting that contention. Harold S. Wolfe, respondent to that bill, and appellee here, by answer and cross-bill, contends the grantees were tenants in common and on the death of Willis Wolfe his interest descended to his heirs at law, who were his said widow and three children. The chancellor sustained the latter contention, ordered a sale of the property and division of the proceeds among the heirs. Complainants and cross-defendants appeal. We are of the opinion that these deeds vested in the grantees the right of survivorship. We do not undertake to determine whether the estate created is one of joint tenancy or entirety. In either case the result is the same, the survivor took the entire property.
(Hn 1) The common law favored joint tenancies. Under it a conveyance to two or more persons not husband and wife created a joint tenancy; if to husband and wife, an estate in entirety. To create an estate in common, it was necessary to add restrictive or explanatory words showing an intent to create such an estate. Vol. 4, Thompson on Real Property, Permanent Edition, Section 1775. Nearly all the states have statutes reversing that presumption. "The legislation converting tenancies into tenancies in common merely meets and reverses the presumption at common law that conveyances and devises to two or more persons create joint tenancies, the presumption under the statutes being they create tenancies in common." Thompson, supra, Section 1789. (Hn 2) Our statute (Section 834, Code 1942) reads: "All conveyances or devises of land made to two or more persons, or to a husband and wife, shall be construed to create estates in common, and not in joint-tenancy or entirety, unless it manifestly appears from the tenor of the instrument, that it was intended to create an estate in joint-tenancy or entirety with the right of survivorship; but this provision shall not apply to mortgages or devises, or conveyances made in trust." It will be noted that this statute does not prohibit the creation of estates in joint tenancy or entirety. It merely means that a conveyance or devise to two or more persons creates an estate in common, and not in joint tenancy or entirety, ". . . unless it manifestly appears from the tenor of the instrument, that it was intended to create an estate in joint-tenancy or entirety with the right of survivorship . . .". (Hn 3) We think the deeds under consideration do manifest an intention to create an estate in joint tenancy and not an estate in common. The first conveys the property to the grantees "and the survivor of them"; the second conveys to them "and to the survivor of them." The two quoted expressions mean the same thing. The distinguishing and most important incident of title by joint tenancy is the doctrine of survivorship, by force of which, upon the death of one joint tenant, the joint estate remains unimpaired with the survivor. Thompson, supra, Sections 1778 and 1791. The same is true of an estate in entirety. Thompson, supra, Section 1804. The parties were careful to expressly create and preserve that right. If the grantees are held to be tenants in common, it is necessary to erase and eliminate the quoted provisions from the deeds. No proper exercise of judicial power would permit that. It is impossible to have the right of survivorship in an estate in common. It is not possible under the terms of these deeds to give effect to the survivorship provision thereof except as an incident to a joint tenancy or an estate in entirety. Under statutes similar to ours, providing that conveyances to two or more persons shall be construed to create a tenancy in common unless it shall manifestly appear from the tenor of the instrument that it was intended to create an estate in joint tenancy, it has been held in other states that an instrument providing plainly, though not in technical language, for a right of survivorship created a joint tenancy. Wood v. Logue, 167 Iowa 436, 149 N.W. 613, Ann. Cas. 1917B, 116; Goggin v. Goggin, 59 R.I. 145, 194 A. 730, 113 A.L.R. 569; Stimpson v. Batterman, 5 Cush., Mass., 153; Mittel v. Karl, 133 Ill. 65, 24 N.E. 553, 8 L.R.A. 655; In re McCallum's Estate, 211 Penn. 205, 60 A. 903; Mitchell et al. v. Frederick, et al., 166 Md. 42, 170 A. 733, 92 A.L.R. 1412.
Appellee relies upon Doran v. Beale et al., 106 Miss. 305, 63 So. 647, 648. That case is not in point or controlling here. No right of survivorship was vested by the deed in that case. It did expressly vest in Florence Doran and Ed Beale, "jointly", an undivided four-fifths interest in land. The Court said "The use of the word `jointly' in this deed is consistent with an intention to simply convey the interest designated to both of the two grantees, and it cannot be said that by its use the grantor manifestly intended to create a joint tenancy with the right of survivorship." (Italics ours.) In the deeds here under consideration, the parties did expressly vest in the grantees the right of survivorship.
Reversed and judgment here for appellant.