Acquired real property as joint tenants, and remained joint tenants until the death of Calvert.
Calvert executed promissory not to his parents, Frank and Alice Wilson (respondents).
Also executed and delivered to Respondents a mortgage upon the real property in question.
Elaine had no knowledge of mortgage.
After Calvert's death, CA commenced an action to condemn the property against Elaine and respondents as mortgagees.
Elaine said she was owner, and that respondents had no interest in property.
Respondents said they had the mortgage and were mortgagees and that they wanted to settle the mortgage from the proceeds of the condemnation award.
Fair market value was $13,800.
Respondents were owed $6k.
Court ordered respondents to be paid; ended up being over half of the award.
Elaine contends that upon his death Calvert's interest ceased and Elaine was entitled to distribution of the entire award.
Procedural History
Trial court held for respondents.
COA held for appellant (Elaine).
Issues
Is a mortgage upon real property executed by one of two joint tenants enforceable after the death of that joint tenant?
Holding/Rule
A mortgage upon real property executed by one joint tenant is not enforceable after the death of that joint tenant.
Reasoning
Four unities are needed for a joint tenancy to exist.
As long as they exist, the right of survivorship is incident to death of one joint tenant. The survivor becomes the sole owner in fee.
Therefore, Elaine became sole owner of property unless the mortgage destroyed one of the unities and severed the joint tenancy.
Since the mortgage was a lien and did not operate to transfer the legal title, it did not destroy any of the unities and the joint tenancy was not severed.
Therefore, the mortgage lien attached only to such interest as Calvert had in the property and when his interest ceased the lien also expired.
If the creditor sits back and waits to see which one is the first to die, instead of selling the interest and severing the joint tenancy, he risks losing his lien.
That is what happened in this case.
In some jurisdictions, a mortgage operates not merely as a lein or charge but as a transfer or conveyance, thus terminating the JT.
