People v. Nogarr
COA of CA- 1958
- Elaine and Calvert Wilson were husband and wife.
- 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.
- Trial court held for respondents.
- COA held for appellant (Elaine).
- Is a mortgage upon real property executed by one of two joint tenants enforceable after the death of that joint tenant?
- A mortgage upon real property executed by one joint tenant is not enforceable after the death of that joint tenant.
- 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.
- This is not one of those jurisdictions.