Darryl F. Bryant, Sr. v. Darryl F. Bryant, Jr. , 522 S.W.3d 392 ( 2017 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
June 2, 2016 Session
DARRYL F. BRYANT, SR. v. DARRYL F. BRYANT, JR.
Appeal by Permission from the Court of Appeals
Chancery Court for Davidson County
No. 141059I Claudia Bonnyman, Chancellor
___________________________________
No. M2014-02379-SC-R11-CV – Filed April 19, 2017
___________________________________
We granted permission to appeal in this case to address whether a joint tenancy with an
express right of survivorship can be severed by the unilateral actions of one of the co-
tenants. The owner of the property at issue in this appeal executed a deed conveying the
property to herself and to her son in a joint tenancy with right of survivorship. The same
grantor later executed a quitclaim deed granting her interest in the property to her
grandson (the son‟s child). After the grantor died, the son filed a declaratory judgment
action against the grandson, claiming that the son was the rightful owner of the property
in fee simple as the surviving joint tenant under the first deed. In response, the grandson
asserted that the grantor‟s second deed severed the joint tenancy, conveyed the grantor‟s
one-half interest to him, and destroyed the son‟s right of survivorship. The trial court
granted the son‟s motion for summary judgment, and the Court of Appeals affirmed. We
reverse. Following the common-law doctrine of severance, we hold that a joint tenancy
with an express right of survivorship may be severed by the unilateral action of one of the
co-tenants, and that doing so converts the estate into a tenancy in common and destroys
the survivorship interests of the original joint tenants. In this case, the grantor‟s second
deed, conveying her interest in the property to the grandson, severed the joint tenancy and
destroyed the son‟s right of survivorship, so the son and the grandson own the property in
equal parts as tenants in common.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Trial Court and Court
of Appeals Reversed; Case Remanded for Further Proceedings
HOLLY KIRBY, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J.,
and CORNELIA A. CLARK and ROGER A. PAGE, JJ., joined. SHARON G. LEE, J., filed a
dissenting opinion.
Leroy Johnston Ellis, IV, Old Hickory, Tennessee, for the Defendant/Appellant Darryl F.
Bryant, Jr.
Ronald B. Buchanan, Nashville, Tennessee, for the Plaintiff/Appellee, Darryl F. Bryant,
Sr.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
In April 2006, James and Molly Bryant, husband and wife, purchased property on
Hadley Avenue in Old Hickory, Davidson County, Tennessee (“the Property”). In
February 2009, James Bryant died, and Molly Bryant became the sole owner of the
Property.
A few months after Mr. Bryant‟s death, on June 9, 2009, Ms. Bryant executed a
quitclaim deed that conveyed the Property to herself and her son, Plaintiff/Appellee
Darryl Bryant, Sr. (“Son”), as joint tenants with an express right of survivorship. The
deed to Ms. Bryant and Son states: “I, Molly Bryant, a widow, have this day bargained
and sold, and do hereby transfer and convey unto Molly Bryant and Darryl Bryant[, Sr.,]
for the purpose of creating a joint tenancy with right of survivorship, . . . all my estate,
right, title, interest and claim in and to [the Property].”
Just over a year later, on September 2, 2010, Ms. Bryant executed another
quitclaim deed on the same Property. This quitclaim deed purported to convey the
Property to Son‟s child, Defendant/Appellant Darryl F. Bryant, Jr., who is Ms. Bryant‟s
grandson (“Grandson”). The deed states that Ms. Bryant does “hereby quitclaim
undivided interest, right, and title [in the Property] to [Grandson].” Both the June 2009
deed and the September 2010 deed were duly recorded with the Register of Deeds for
Davidson County.
In November 2013, Ms. Bryant died at the age of eighty-nine. At the time of Ms.
Bryant‟s death, Grandson was living with her in the home on the Property.
In July 2014, Son filed a complaint against Grandson in the Chancery Court of
Davidson County, Tennessee, seeking a declaratory judgment and possession of the
Property. In the complaint, Son averred that, because the June 2009 quitclaim deed
granted Son a right of survivorship, he became the sole owner of the Property in fee
simple upon Ms. Bryant‟s death. He asserted, “The only interest that [Ms. Bryant]
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conveyed to [Grandson] was her survivorship interest whereby she would own the
Property if she survived [Son].” Thus, Son contended, upon Ms. Bryant‟s death,
Grandson was left with no interest in the Property. Son asked the trial court to enter “an
order declaring that the Property is now vested entirely in [Son] and that [Grandson] has
no ownership in the Property, legal or equitable, whatsoever.” Son also sought an order
requiring Grandson to vacate the Property. Soon after filing the complaint, Son filed a
motion for summary judgment claiming that, on the undisputed facts, he was entitled to
judgment as a matter of law.
In response, Grandson filed a motion to strike Son‟s summary judgment motion
and to dismiss the complaint for failure to state a claim upon which relief could be
granted. See Tenn. R. Civ. P. 12.02(6). Grandson claimed in his motion that, in the
September 2010 deed, Ms. Bryant conveyed to him her one-half interest in the property
and that this conveyance severed Son‟s right of survivorship. Grandson asserted that
Son‟s complaint was “based on an improper legal premise that the co-tenants in a Joint
Tenan[cy] with the Right of Survivorship are not at liberty to unilaterally terminate the
Right of Survivorship.” He contended that, when Ms. Bryant conveyed her interest to
him (Grandson), Son and Grandson became equal owners in the Property as tenants in
common. The trial court denied Grandson‟s motion to dismiss and scheduled a hearing
date for Son‟s summary judgment motion.
In October 2014, the trial court conducted the scheduled hearing on Son‟s motion
for summary judgment.1 Ultimately, the court ruled in favor of Son. It approached the
issue as one of first impression; looking to the law in other jurisdictions, the trial court
decided to take guidance from the law in Michigan. Following Michigan law, the trial
court held that a joint tenancy with an express right of survivorship is comprised of a
joint life estate with dual contingent remainders and that the contingent remainders are
not subject to being destroyed by the actions of a co-tenant. Slip Op. at 3-4 (following
Wengel v. Wengel, 714 N.W.2d 371, 378 (Mich. Ct. App. 2006) (citing Albro v. Allen,
454 N.W.2d 85, 93 (Mich. 1990))). Accordingly, the trial court held, each co-tenant in a
joint tenancy with right of survivorship “has the right to own the fee title upon the death
of the other cotenant,” and “[o]ne co[-]tenant should not have the right to destroy that
right of survivorship by his/her unilateral action.” Id. at 4. On that basis, the trial court
granted summary judgment in favor of Son. Grandson appealed.
1
The appellate record does not include a transcript of the hearing on Son‟s motion for summary
judgment.
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The Court of Appeals affirmed the trial court‟s decision, albeit on a different basis.
Bryant v. Bryant, No. M2014-02379-COA-R3-CV, 2015 WL 5695207, at *4 (Tenn. Ct.
App. Sept. 28, 2015). The appellate court reasoned that “Ms. Bryant‟s intent, as
evidenced by the language she used in her deeds, determines the outcome in this case.”
Id. It first observed that the June 2009 deed plainly reflected Ms. Bryant‟s intent to
convey to Son a joint tenancy with an express right of survivorship. The appellate court
then pointed out that the September 2010 deed to Grandson included a reference to the
June 2009 deed to Son. The reference was contained in the September 2010 deed‟s
derivation clause, which gives information about the source of the grantor‟s title. The
relevant part of the derivation clause stated: “Reference is also made to instrument
number 20090611-0054308,” which is the June 2009 deed. Id. Ms. Bryant‟s reference to
the June 2009 deed in the September 2010 deed to Grandson, the Court of Appeals
surmised, indicated an intent to convey to Grandson “her interest in the Property,
including her right of survivorship, but only in the event that she outlived [Son].” Id.The appellate court explained: “Ms. Bryant would have had no reason to reference
expressly her earlier deed to [Son] unless she wanted [Grandson] to be aware of the joint
tenancy and survivorship interest she had already conveyed to his father.” Id. It added,
“If [Son] had predeceased Ms. Bryant, then [Grandson] would have become the fee
simple owner of the Property upon [Son‟s] death.” Id. Because Ms. Bryant predeceased
Son, the appellate court concluded, Son “is the sole surviving joint tenant, and he now
owns the Property in fee simple.” Id. We granted Grandson‟s application for permission
to appeal.
ISSUES AND STANDARD OF REVIEW
On appeal, Grandson presents four issues for our review:
1. Under Tennessee law, what are the characteristics of a joint
tenancy with a right of survivorship? How may the right of survivorship be
terminated in a joint tenancy?
2. Does the grantor‟s creation of a joint tenancy give rise to any
contract rights between the joint tenants as suggested by the trial court?
3. Does the derivation clause in a deed show intent of the grantor as
suggested by the Court of Appeals?
4. When two parties hold real property located in Tennessee as
“joint tenants with right of survivorship,” and one of those parties
independently conveys all “interest, right, and title” to a third party, what is
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the resulting estate in land between the original joint tenant and the third
party?
We perceive the pivotal issue to be whether the joint tenancy with an express right of
survivorship established in the June 2009 deed was severed by the actions of Ms. Bryant
in executing the September 2010 deed to Grandson. If so, Son and Grandson own the
Property in equal parts as tenants in common. If not, Son now owns the Property in fee
simple as the surviving joint tenant under the June 2009 deed.
This appeal arises out of the trial court‟s grant of summary judgment, so we
review the trial court‟s decision de novo with no presumption of correctness.2 Rye v.
Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain
v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)); Parker v. Holiday Hospitality Franchising,
446 S.W.3d 341, 346 (Tenn. 2014). Summary judgment should be granted only when
“the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P.
56.04. Conversely, summary judgment should not be granted when there are genuine
disputes of material fact. Rye, 477 S.W.3d at 264-65; Parker, 446 S.W.3d at 346. In the
instant case, the material facts are not disputed. We are presented with only questions of
law, which are reviewed de novo, affording no deference to the decisions of the lower
courts. See Rye, 477 S.W.3d at 250.
ANALYSIS
Tenancies Under Common Law
Tennessee recognizes three basic forms of concurrent ownership in real property:
joint tenancy, tenancy in common, and tenancy by the entirety. See Griffin v. Prince, 632
S.W.2d 532, 535 (Tenn. 1982). A brief review of these tenancies is helpful to our
discussion.
At common law, the type of tenancy that results from a conveyance of real
property to two or more persons depends on the whether the four unities—interest, title,
2
In Rye, this Court overruled the summary judgment framework set forth in Hannan v. Alltel
Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008), and reinstated summary judgment standards consistent with
Rule 56 of the Federal Rules of Civil Procedure and the Celotex trilogy of cases. Rye, 477 S.W.3d at 264;
see Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
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time, and possession—exist at the time of conveyance. Bennett v. Hutchens, 179 S.W.
629, 631 (Tenn. 1915) (describing the four unities as having “one and the same interest,
accruing by one and the same conveyance, commencing at one and the same time, and
held by one and the same undivided possession” (quoting 2 WILLIAM BLACKSTONE,
COMMENTARIES 180)); 2 TIFFANY REAL PROP. § 418 (3d ed. 2016) (quoting 2 WILLIAM
BLACKSTONE, COMMENTARIES 180). If the four unities exist at the time of the
conveyance and the conveyance is made to a married couple, the conveyance results in a
tenancy by the entirety, absent language indicating a contrary intent.3 Bennett, 179 S.W.
at 631. If the four unities exist but the conveyance is to unmarried persons, the
conveyance results in a joint tenancy; by operation of law, a common-law joint tenancy
includes a right of survivorship even when no words of survivorship are used in the
granting instrument. Peebles v. Peebles, 443 S.W.2d 469, 470 (Tenn. 1969) (quoting
Jones v. Jones, 206 S.W.2d 801, 803 (Tenn. 1947)); Bunch v. Bunch, No. 02A01-9705-
CH-00106, 1998 WL 46217, at *1 (Tenn. Ct. App. Jan. 8, 1998) (citing Jones, 206
S.W.2d at 803); see also Durant v. Hamrick, 409 So. 2d 731, 742 (Ala. 1981) (Adams, J.,
dissenting) (commenting that “to say „joint tenancy with right of survivorship‟ is
redundant”). If, however, the four unities are not present at the time of the conveyance,
the conveyance results in a tenancy in common, which does not include a right of
survivorship. See Runions v. Runions, 207 S.W.2d 1016, 1017 (Tenn. 1948) (holding
that, when a husband first acquired property and then conveyed it to his wife, they could
not hold the property as tenants by the entirety or joint tenants because “the four unities
did not coincide,” so the deed created a tenancy in common with a right of survivorship).
There are important differences among the three types of common-law tenancies.
We summarize the differences as background for our analysis.
A tenancy by the entirety is held exclusively by persons who are legally married.
It is ancient in origin and remains firmly established in Tennessee. 4 Griffin, 632 S.W.2d
at 534-35; see Tenn. Code Ann. §§ 36-3-505, 31-1-108. Tenancy by the entirety is based
3
If the language of the granting instrument clearly demonstrates the grantor‟s intention that the
husband and wife take the property as joint tenants or tenants in common, rather than as tenants by the
entirety, this language will be effective. Absent such language, however, a conveyance to married
persons “prima facie means that they are to hold by the entireties.” Myers v. Comer, 234 S.W. 325, 326
(Tenn. 1921); Thomason v. Smith, 8 Tenn. App. 30, 33-34 (1928).
4
“It is well settled in this state that personal property as well as realty may be owned by spouses
by the entirety.” Griffin v. Prince, 632 S.W.2d 532, 535 (Tenn. 1982) (citing Campbell v. Campbell, 66
S.W.2d 990, 992 (Tenn. 1934); Smith v. Haire, 181 S.W. 161, 165 (Tenn. 1915)).
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on the concept that those who are married are not separate persons; rather, they “are but
one person.” Tindell v. Tindell, 37 S.W. 1105, 1106 (Tenn. Ct. App. 1896) (quoting Den
v. Hardenbergh, 10 N.J.L. 42, 45 (1828)); see Taul v. Campbell, 15 Tenn. (7 Yer.) 319,
333 (1835) (noting that a husband and wife “take but one estate, as a corporation would
take, being by the common law deemed but one person”). Consequently, co-tenants in a
tenancy by the entirety do not hold their interest by moieties (by parts), they hold by the
entirety: “Each is not seised of an undivided moiety, but both are . . . seised of the whole.
They are seised, not per my et per tout [by the half and by the whole], but solely and
simply per tout [by the whole].”5 Tindell, 37 S.W. at 1106 (quoting Den, 10 N.J.L. at
45).
When property is held in a tenancy by the entirety, upon the death of one spouse,
the survivor continues to own the whole in fee simple. Technically, then, the surviving
spouse does not acquire the fee simple interest through a right of survivorship; the
survivor “enjoys the whole [after the death of the other spouse], . . . not because any new
or further estate or interest becomes vested, but because of the original conveyance, and
of the same estate and same quantity of estate as at the time the conveyance was
perfected.” Id. (quoting Den, 10 N.J.L. at 45) (explaining that “[b]etween husband and
wife, the jus accrescendi [right of survivorship] does not exist”); see Cole Mfg. Co. v.
Collier, 31 S.W. 1000, 1001 (Tenn. 1895); Moore v. Cole, 289 S.W.2d 695, 698 (Tenn.
1956); Taul, 15 Tenn. (Yer.) at 336-37.
At common law, the primary difference between holding in joint tenancy and
tenancy in common is that joint tenancy includes a right of survivorship between the co-
tenants by operation of law, whereas tenancy in common does not. See Peebles, 443
S.W.2d at 470; Bunch, 1998 WL 46217, at *1. While a tenancy by the entirety can
consist only of two persons seized of one estate, both joint tenancy and tenancy in
common “impl[y] a plurality of persons” and “each of the owners has an undivided
moiety, or other proportional part, of the whole premises.” Tindell, 37 S.W. at 1106
(quoting Den, 10 N.J.L. at 45); see Taul, 15 Tenn. (7 Yer.) at 336 (citation omitted)
(noting that, unlike a tenancy by the entirety, “[t]he estate of joint tenants is [a] unit,
made up of divisible parts subsisting in different natural persons”).
“Tenants in common are jointly seized of the whole estate, each having an equal
right of entry and possession . . . .” Moore v. Cole, 289 S.W.2d 695, 697 (Tenn. 1956).
5
To illustrate the point, the Tindell court explained, “In a grant to a husband and wife and a third
person, the husband and wife take one half, and the other person takes the other half; and, if there be two
other persons, the husband and wife take one third, and each of the others one third.” Tindell, 37 S.W. at
1106 (quoting Den, 10 N.J.L. at 45).
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Right of survivorship is not an incident of tenancy in common; however, the grantor may
include in the instrument of conveyance express language attaching a right of
survivorship to the tenancy in common. See Runions, 207 S.W.2d at 1017 (“Even a
tenancy in common may have a right of survivorship attached to it if the grantor
expresses an intention that it shall be so.” (quoting Mitchell v. Frederick, 170 A. 733,
735-36 (Md. 1934))).
Common-Law Doctrine of Severance
Severance is the termination of a tenancy “by any act which is inconsistent with its
continued existence, or which operates to destroy its essential unities or one or some of
them.” W. W. Allen, Annotation, What Acts By One or More of Joint Tenants Will Sever
or Terminate the Tenancy, 64 A.L.R.2d 918, § 2 (1959) (footnote omitted); 20 AM. JUR.
2d Cotenancy and Joint Ownership § 21 (2015). Because spouses in a tenancy by the
entirety are treated as one person, a spouse in such a tenancy cannot sever it unilaterally
by transferring a portion of the property without the assent of the other spouse, as doing
so would destroy the survivor‟s right to own the whole. Tindell, 37 S.W. at 1106
(quoting Den, 10 N.J.L. at 45); Taul, 15 Tenn. (7 Yer.) at 336. In contrast, in a common-
law joint tenancy, any joint tenant can, “at his pleasure, dispose of his share, and convey
it to a stranger, who will hold undivided, and in common with the other owner.” Tindell,
37 S.W. at 1106 (quoting Den, 10 N.J.L. at 45); see McLeroy v. McLeroy, 40 S.W.2d
1027, 1028 (Tenn. 1931) (citations omitted) (“One joint tenant can convey his interest in
land without the joinder of the other tenant.”); McGhee v. Henry, 234 S.W. 509, 509-10
(Tenn. 1921) (indicating that, unlike in a tenancy by the entirety, a joint tenant “can
separate his interest from the other”); Knight v. Knight, 458 S.W.2d 803, 807 (Tenn. Ct.
App. 1970) (noting that “inalienability is an incident only of estates by the entireties”);
see also Bunch, 1998 WL 46217, at *2 (relying in part on Tindell and McLeroy to hold
that, absent agreement to the contrary, a joint tenancy may be partitioned at the request of
only one of the joint tenants).
The severability of a common-law joint tenancy is based on the premise that, once
any of the four unities is destroyed, the estate by definition is no longer a joint tenancy; it
becomes a tenancy in common. See Tindell, 37 S.W. at 1106 (citation omitted); see also
United States v. Craft, 535 U.S. 274, 280 (2002). When one joint tenant severs his
interest by conveying it to a third person, the joint tenancy becomes a tenancy in common
between the third person and the remaining joint tenant(s), and the right of survivorship is
destroyed. See 2 TIFFANY REAL PROP. § 425 & n.64.10 (3d ed.); 20 AM. JUR. 2d
Cotenancy and Joint Ownership § 21 (2015). One commentator has explained:
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“In the ancient language of the law, joint tenants were said to hold
per my et per tout, or in plain words, „by the moiety or half and by all.‟”
This statement, which of course is strictly accurate only in the case of there
being but two joint tenants, serves to indicate the conception of a joint
tenancy as one which allows each owner to hold a particular share which he
may alienate, while at the same time he and the other or others hold the
entire property as by a single ownership. The theoretical peculiarity of a
joint tenancy at common law, and also by the law as it still generally
prevails, is the coexistence of the four unities, the unity of interest, the unity
of title, the unity of time, and the unity of possession, that is to say, “joint
tenants have one and the same interest accruing by one and the same
conveyance, at one and the same time, and held by one and the same
undivided possession.” The principal practical aspect of a joint tenancy
consists in the fact that on the death of one of the joint tenants, no
severance of his interest having theretofore occurred, the exclusive title
inures to the surviving joint tenant or tenants.
From these peculiarities of ownership it follows logically, and also
under the law, that joint tenants can terminate the joint tenancy by any act
which is inconsistent with its continued existence, or which operates to
destroy its essential unities or one or some of them. So to the extent of the
interest affected, and therefore in toto where there are only two joint
tenants, a joint tenancy is severed by any act of a joint tenant which
operates to destroy one or more of its unities.
Allen, supra, at § 2 (emphasis added) (footnotes omitted); see Tindell, 37 S.W. at 1106
(“A severance of a joint tenancy may be made, and the estate thereby turned into a
tenancy in common, by any one of the joint owners, at his will.” (quoting Den, 10 N.J.L.
at 45)); see also Craft, 535 U.S. at 280 (stating generally that, when one joint tenant
conveys his interest to another, the estate is severed, which means it is “converted to a
tenancy in common with each tenant possessing an equal fractional share”). Of course,
“[a]n ownership interest of a tenant in common is severable” by any of the co-tenants. 20
AM. JUR. 2d Cotenancy and Joint Ownership § 39 (2015).
Abolition of the Survivorship Interest in Joint Tenancies
Eventually, the survivorship interest incident to common-law joint tenancies fell
into disfavor in both America and England. R. P. Davis, Annotation, Creation of Right of
Survivorship by Instrument Ineffective to Create Estate by Entireties or Joint Tenancy, 1
A.L.R.2d 247, § 1 (1948). One commentator suggests that hostility toward joint
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tenancies began to develop partly because “Americans were coming to regard land as a
commodity,” rather than simply as family land. Byron D. Cooper, Continuing Problems
with Michigan’s Joint Tenancy “With Right of Survivorship”, 78 MICH. B. J. 966, 967
(1999). “A joint tenancy „was suitable for family lands; less so, for lands of people
dealing at arm‟s length with each other in the market.‟” Id. (quoting LAWRENCE M.
FRIEDMAN, A HISTORY OF AMERICAN LAW 235 (2d ed. 1985)). As a result of the
disfavor toward survivorship rights, legislation abrogating the common-law rule “and
modifying or abolishing the doctrine of survivorship has been enacted in virtually every
state.” Davis, supra, at § 1; see Banks v. Banks, 135 A.3d 311, 313-14 (Del. Ch. 2016)
(“Legislatures in jurisdictions in this country have since curbed and even eliminated the
estate of joint tenancy with right of survivorship . . . .”).
A review of the early history of our nation reveals that at no time during her
statehood has Tennessee recognized a survivorship interest incident to joint tenancies.
Before Tennessee became a state, much of what is now Tennessee was held by North
Carolina. See TRE HARGETT, SECRETARY OF STATE, TENNESSEE BLUE BOOK 2015-2016
506-07 (2015). The North Carolina legislature abolished the incidental right of
survivorship in joint tenancies in that territory by enacting the Act of 1784, chapter 22,
section 6. 1 EDWARD SCOTT, LAWS OF THE STATE OF TENNESSEE, INCLUDING THOSE OF
NORTH CAROLINA NOW IN FORCE IN THIS STATE FROM THE YEAR 1715 TO THE YEAR
1820, INCLUSIVE 294 (Heiskell & Brown 1821); see Gaines v. Catron, 20 Tenn. (1 Hum.)
514, 515-16 (1840); Bennett, 179 S.W. at 631; Scholze v. Scholze, 2 Tenn. App. 80, 90
(1925). The Act of 1784 provided:
[I]n all estates real and personal, held in joint tenancy, the part or
share of any tenant dying shall not for the future descend or go to the
surviving tenant or tenants, but shall descend or be vested in the heirs,
executors, administrators or assigns respectively of the tenant so dying, in
the same manner as estates held by tenancy in common, any law usage or
custom to the contrary notwithstanding . . . .
Scott, supra, at 294. The explicit purpose of the North Carolina legislation was to
prevent “manifest injustice to the family of [the co-tenant] who may happen to die first.”
Id. In 1789, when North Carolina ratified the new Constitution of the United States, it
ceded its western lands to the federal government; the territory ceded included much of
what is now Tennessee. HARGETT, supra, at 507; see Fogg v. Williams, 39 Tenn. (2
Head) 474, 478-79 (1859); Overton’s Lessee v. Campbell, 6 Tenn. (5 Hayw.) 165, 168
(1818). When Tennessee became a state a few years later in 1796, Tennessee‟s first
Constitution and the cession act of North Carolina made North Carolina‟s Act of 1784 the
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law in Tennessee.6 Shepherd Fleets, Inc. v. Opryland USA, Inc., 759 S.W.2d 914, 915
(Tenn. Ct. App. 1988).
The above-quoted provision in North Carolina‟s Act of 1784 remained the law in
Tennessee until our General Assembly enacted Tennessee‟s own organized Code
system—the Code of 1858—which repealed and replaced all prior existing public and
general acts. See Shepherd Fleets, 759 S.W.2d at 915-16 (citing State v. Miller, 79 Tenn.
620, 625-26 (1883)). Tennessee‟s Code of 1858, however, included a section
substantially identical to the relevant section in the North Carolina Act of 1784, providing
a seamless legislative abolition of the survivorship interest incident to joint tenancies in
Tennessee. Tenn. Code Ann. § 2010 (1858). Over the years, this provision abolishing
the survivorship interest in joint tenancies has remained the law in Tennessee.7 Now
codified at Tennessee Code Annotated section 66-1-107, it contains language that is
nearly identical to the corresponding provision in the Act of 1784:
In all estates, real and personal, held in joint tenancy, the part or
share of any tenant dying shall not descend or go to the surviving tenant or
tenants, but shall descend or be vested in the heirs, executors, or
administrators, respectively, of the tenant so dying, in the same manner as
estates held by tenancy in common.
Tenn. Code Ann. § 66-1-107 (2015).
Although the incidental right of survivorship in joint tenancies has never existed in
Tennessee, our courts have consistently recognized that property owners remain free “to
expressly provide for survivorship by deed.” Jones, 206 S.W.2d at 803; see also Lowry
6
Our Court of Appeals has explained:
By the provisions of the Constitution of 1796 and the cession act of North
Carolina contained in Acts 1789, Ch. 3 § 1, condition 8, all laws in force in North
Carolina at the time said cession act became effective in the ceded territory which
became [Tennessee] and laws in effect in the ceded territory at the time of the adoption of
the 1796 Constitution became effective in Tennessee, except those inconsistent with the
Constitution.
Shepherd Fleets, Inc. v. Opryland USA, Inc., 759 S.W.2d 914, 915 (Tenn. Ct. App. 1988).
7
The same provision was later included in Shannon‟s Code of 1896 at section 3677. See, e.g.,
Myers v. Comer, 234 S.W. 325, 326 (Tenn. 1921); Bennett, 179 S.W. at 631; Scholze v. Scholze, 2 Tenn.
App. 80, 90 (1925).
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v. Lowry, 541 S.W.2d 128, 131 (Tenn. 1976); Peebles, 443 S.W.2d at 471. As a result,
any survivorship interest in a transfer of concurrent ownership must “result from the
terms of the grant rather than by operation of law.” Peebles, 443 S.W.2d at 470 (quoting
Jones, 206 S.W.2d at 591). In other words, Tennessee Code Annotated section 66-1-107
does not apply “where the instrument creating the estate either by express language or
necessary implication manifests an intention to create a right of survivorship.” Id. at 471.
The abolition of the incidental survivorship interest in joint tenancies rendered the
four unities irrelevant to the question of whether a conveyance creates a joint tenancy or a
tenancy in common. This Court has explained:
[T]he common-law unities requisite to joint tenancy have become
academic as applied to [a joint tenancy], a tenancy in common resulting if
no contrary intent is expressed, whether or not the unities are present.
When the intent to establish an estate by survivorship is clear, the existence
or nonexistence of the unities becomes immaterial upon the idea that the
rule fails where the reason fails.
Peebles, 443 S.W.2d at 470 (quoting Jones, 206 S.W.2d at 803). Because joint tenancies
no longer include a survivorship interest by operation of law, both joint tenants and
tenants in common have essentially the same rights, which are the “right to use, to
exclude, and to enjoy a share of the property‟s income.” Craft, 535 U.S. at 280 (citing 2
WILLIAM BLACKSTONE, COMMENTARIES 180, 183 (1776)); see 20 AM. JUR. 2d
Cotenancy and Joint Ownership § 41 (2015). In sum, at common law, the right of
survivorship was the primary difference between a joint tenancy and a tenancy in
common, see Craft, 535 U.S. at 280, but under Tennessee property law, that difference
has never existed in the common-law tenancies. See Tenn. Code Ann. § 66-1-107.
Under Tennessee law, if parties seek to include a right of survivorship in either a joint
tenancy or a tenancy in common, they must do so by including clear language to that
effect in the granting instrument.
Severability of Joint Tenancy with Express Right of Survivorship
As we have explained, a common-law joint tenancy can be severed, and the right
of survivorship destroyed, by the unilateral action of any joint tenant.8 See McLeroy, 40
8
In this appeal, Son acknowledges that a common-law joint tenancy “may be severed by the
independent act of one of the tenants, such as conveyance to a third party by either party, or by levy and
sale on an execution against one of the tenants.” Appellee‟s Brief at 6.
- 12 -
S.W.2d 1027, 1028 (Tenn. 1931); McGhee, 234 S.W. at 509-10; Tindell, 37 S.W. at 1106
(quoting Den, 10 N.J.L. at 45). Because common-law joint tenancies are not recognized
in Tennessee, however, the question becomes whether the common-law doctrine of
severance applies to a joint tenancy in which an express right of survivorship has been
created by the granting instrument. This is a matter of first impression.
Typically, when addressing an issue of first impression, we look to similar cases in
other jurisdictions for guidance. Here, that task is complicated by the fact that each
state‟s property law is comprised of a combination of caselaw and specialized statutes;
the relevant caselaw can date back more than 200 years, and the property-law statutes
have evolved over the same period. In looking to our sister states for guidance, we will
consider first whether a given state‟s overall body of property law aligns with ours and
then consider specifically whether its treatment of the issue presented in this appeal is
consistent with Tennessee property law.
As noted above, most states have enacted statutes abolishing the common-law rule
that a conveyance to two or more persons will result in a joint tenancy based on the
existence of the four unities. Some states accomplished this by enacting a statute similar
to the Act of 1784 and Tennessee‟s section 66-1-107, in that they prescribe a manner of
descent, requiring the interest of a deceased joint tenant to pass to his heirs (rather than to
the co-tenant) at his death “in the same manner as estates held by tenancy in common.”
Tenn. Code Ann. § 66-1-107. These statutes sometimes explicitly permit the creation of
a survivorship interest by the use of express language in the granting instrument.9 Other
9
Similar to the law in Tennessee, Pennsylvania has a statute that provides for the proper manner
of descent, but Pennsylvania common law instructs that the survivorship interest can be created by
express language. See 68 Pa. Stat. Ann. § 110 (removing survivorship interest); In re Estate of Quick,
905 A.2d 471, 477 (Pa. 2006) (recognizing that parties can include survivorship interest by express
language). Several other states both prescribe the manner of descent and also expressly permit the
creation of a survivorship interest by express language: Ala. Code § 35-4-7 (2014); Fla. Stat. § 689.15(2016); Ky. Rev. Stat. §§ 381.120, 381.130 (West 2002); Miss. Code Ann. § 89-1-7 (2011);Va. Code
Ann. §§ 55-20, 55-20.1, 55-21 (2012); W. Va. Code §§ 36-1-19, 36-1-20 (2011).
The dissent points to statutes in Oregon and Ohio that also allow the creation of a survivorship
estate by express language. Unlike Tennessee, however, Oregon and Ohio do not have statutes that
provide for the manner of descent in joint tenancies; in fact, neither Oregon nor Ohio recognizes
common-law joint tenancy at all. Or. Rev. Stat. § 93.180(3) (“[J]oint tenancy in real property is
abolished”); Spitz v. Rapport, 604 N.E.2d 801, 803 (Ohio Ct. App. 1992) (noting that “there is no
common-law joint tenancy with right of survivorship in Ohio”).
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states‟ statutes provide more directly that a joint tenancy may be created only by using
specific language indicating that a joint tenancy was intended by the parties.10
States address the severability of joint tenancies by both statutory law and
common law. Statutes on the topic generally permit the severance of a joint tenancy and
provide the manner in which such a severance may be effected.11 But even states that
have not enacted legislation on the severability of joint tenancies have nearly
unanimously followed the common-law rule of severance, recognizing that a joint tenant
may unilaterally sever the joint tenancy and destroy the survivorship interest, even when
the survivorship interest was created by express language in the granting instrument. As
the District of Columbia has recognized, “The applicable rule in a large majority of
jurisdictions is that either party to a joint tenancy may sever that tenancy by unilaterally
disposing of his interest, that the consent of the other tenant is not required, and that the
transfer converts the estate into a tenancy in common.”12 Estate of Gulledge, 673 A.2d
10The following states‟ statutes require express language in order to create a joint tenancy: Ark.
Code Ann. § 18-12-603 (2015); Colo. Rev. Stat. § 38-31-101 (2016); Del. Code Ann. tit. 25 § 701 (2009);
D.C. Code § 42-516 (2012); Haw. Rev. Stat. Ann. § 509-1 (2008 & Supp. 2015); Idaho Code Ann. § 55-
104 (2012); Ill. Comp. Stat. 1005/1 (2014); Ind. Code § 32-17-2-1 (2016); Iowa Code § 557.15 (2015);
Kan. Stat. Ann. § 58-501 (2005); Me. Rev. Stat. Ann. tit. 33 §159 (1999 & Supp. 2015); Md. Code Ann. §
2-117 (West 2015); Mass. Gen. Laws ch. 184 § 7 (2014); Minn. Stat. § 500.19 (2014); Mo. Rev. Stat. §
442.450 (2000); Mont. Code Ann. §§ 70-1-307, -314 (2015); Nev. Rev. Stat. § 111.065 (2015); N.H. Rev.
Stat. Ann. § 477:18 (2013); N.J. Stat. Ann. § 46:3-17 (2015); N.M. Stat. Ann. § 47-1-36 (1995); Okla.
Stat. tit. 60 § 74 (2010); R.I. Gen. Laws § 34-3-1 (2011); S.D. Codified Laws § 43-2-12 (2004 & Supp.
2016); Vt. Stat. Ann. tit. 27 § 2 (2012).
11
These statutes specifically address the severability of a joint tenancy: Ariz. Rev. Stat. Ann. §
33-431(E) (2014) (indicating that the right of survivorship may be terminated by filing an “affidavit
terminating right of survivorship”); Cal. Civ. Code § 683.2 (West 2007 & Supp. 2016) (describing ways
to sever a joint tenancy); Conn. Gen. Stat. § 47-14c (2015) (indicating that a transfer of one joint tenant‟s
interest severs the joint tenancy as to his interest); Ga. Code Ann. § 44-6-190 (2010 & Supp. 2016)
(abolishing survivorship interest, unless expressly stated, and providing how a joint tenant may sever his
interest); N.Y. Real Prop. Law § 240-c (McKinney 2016) (describing all manner of joint tenancy
severance); N.C. Gen. Stat. § 41-2(a) (2015) (specifying that “conveyance to a third party” will make a
joint tenancy a tenancy in common); S.C. Code Ann. § 27-7-40 (2007) (providing rules on creation of
joint tenancy and severance); Wash. Rev. Code Ann. § 64.28.010 (2014) (stating that common-law right
to sever is recognized).
12
At least three jurisdictions that adhere to the majority rule have held that, while a “joint tenancy
with a right of survivorship” is severable by one joint tenant, a “tenancy in common with a right of
survivorship” is not. See Durant v. Hamrick, 409 So. 2d 731, 738 (Ala. 1981); Smith v. Cutler, 623
S.E.2d 644, 647 (S.C. 2005); Hass v. Hass, 21 N.W.2d 398, 402 (Wis. 1945). Notably, these jurisdictions
do not recognize tenancy by the entirety, so recognizing an indestructible “tenancy in common with a
- 14 -
1278, 1279-80 (D.C. 1996) (citations omitted); see also Wood v. Pavlin, 467 S.W.3d
323, 324-25 (Mo. Ct. App. 2015) (“A right to sever also is our national norm.”); Herring
v. Carroll, 300 S.E.2d 629 (W. Va. 1983) (“It is generally, if not universally, recognized
elsewhere that a joint tenant may convey his undivided interest in real property to a third
person.”).
Michigan law, on which the trial court below based its decision, is unique. It
permits the creation of either a common-law joint tenancy or a joint tenancy with full
rights of survivorship; Michigan recognizes that the former is severable, but the latter is
not. Cooper, supra, at 969 (describing Michigan‟s law as “anomalous”). A brief review
of Michigan law will illustrate this point.
The “standard” joint tenancy in Michigan “is of the type typically recognized in
various jurisdictions,” and it is characterized by the existence of the four unities. Albro v.
Allen, 454 N.W.2d 85, 87 (Mich. 1990). The Michigan Supreme Court explained that,
“[i]n the standard joint tenancy, the right of survivorship may be destroyed by severance
of the joint tenancy,” which can happen “by an act of the parties, by conveyance by either
party, or by levy and sale on an execution against one of the parties.” Id. (citations
omitted). A joint tenancy with full right of survivorship, however, is created when the
granting instrument includes “express words of survivorship . . . in addition to those
creating a joint tenancy.” Id. at 88. This “joint tenancy with full rights of survivorship”
under Michigan law is considered to be “a joint life estate with dual contingent
remainders.” Id. (citing 1 CAMERON, MICHIGAN REAL PROPERTY LAW, § 9.11, at 274);
see also Or. Rev. Stat. § 93.180(2) (“A declaration of a right to survivorship creates a
tenancy in common in the life estate with cross-contingent remainders in the fee
simple.”). It is “described as „a moiety to each [party] for life, with remainder to [the
survivor] in fee.‟” Albro, 454 N.W.2d at 88 (quoting Schultz v. Brohl, 74 N.W. 1012,
1013 (Mich. 1898)). When viewed in this manner, the contingent remainder following
the joint life estate becomes inalienable based on Michigan Compiled Laws section
554.32, which provides: “No expectant estate can be defeated or barred by an alienation
or other act of the owner of the intermediate or precedent estate, nor by any destruction of
such precedent estate by disseizin, forfeiture, surrender, merger, or otherwise.” Id. at 90
(citing then-current Mich. Comp. Laws § 554.32); accord Wengel v. Wengel, 714 N.W.2d
371, 378 (Mich. Ct. App. 2006) (relying on Albro). Thus, in Michigan, when the
survivorship interest is created by express language in a joint tenancy, the co-tenants are
right of survivorship” allows married and non-married parties to create a tenancy similar to a tenancy by
the entirety. See Dougherty v. Hovater, 447 So. 2d 185, 186 (Ala. 1984); Smith, 623 S.E.2d at 646;
Perrigo v. Richardson’s Estate (In re Richardson’s Estate), 282 N.W. 585, 587 (Wis. 1938).
- 15 -
not permitted to take unilateral action to sever the tenancy or destroy the survivorship
interest.13
Oregon law is similar to the law in Michigan in that Oregon courts view a joint
tenancy with an express right of survivorship as conveying “concurrent interests for life
with contingent remainders which would vest in the survivor,” Halleck v. Halleck, 337
P.2d 330, 337 (Or. 1959) (citing Erickson v. Erickson, 115 P.2d 172, 175 (Or. 1941)).
Oregon, however, interprets the conveyance of a “joint tenancy” in this way because it
has by statute abolished the joint tenancy form of ownership. Or. Rev. Stat. § 93.180(3).
For example, in Halleck, a father granted real property to himself and his son, “not as
tenants in common but with the right of survivorship.” Halleck, 337 P.2d at 337. After
the father died, the father‟s new wife asserted that she owned the property pursuant to the
father‟s (her husband‟s) will, but the son maintained that he owned the property based on
his survivorship interest. Id. at 331-32. The Oregon Supreme Court held in favor of the
son. Id. at 338. It reasoned that, because joint tenancies were abolished by statute in
Oregon, a conveyance granting an express right of survivorship in co-tenants creates
“concurrent interests for life with contingent remainders which would vest in the
survivor.” Id. at 337 (citing Erickson, 115 P.2d at 179). Like the Michigan Supreme
Court in Albro, the Oregon Court in Halleck held that the contingent remainder in the
conveyance was indestructible: “[T]his power to defeat the survivorship interest does not
extend to co[-]tenants who hold concurrent life estates with contingent remainders. The
contingent remainder which each co-tenant has cannot be defeated by any act of his
cotenant.” Id. at 338 (emphasis added). For these reasons, the Oregon Court held that,
upon the death of the father, the son owned the property in fee simple. Id.; accord
Holbrook v. Holbrook, 403 P.2d 12, 13-14 (Or. 1965).
From our review of the authorities cited herein, it appears that Michigan and
Oregon represent an extreme minority approach to the severability of joint tenancies.14 In
13
The North Dakota Supreme Court has recognized that “joint tenancy may be described as a life
estate with each joint tenant having a contingent remainder in fee—the contingency being based upon
survival of the other joint tenant or tenants,” Jamestown Terminal Elevator, Inc. v. Knopp, 246 N.W.2d
612, 613 (N.D. 1976). Unlike Michigan, however, North Dakota has also held that “[o]ne joint tenant
may convey his entire interest in the property to a third person,” Robar v. Ellingson, 301 N.W.2d 653,
662 (N.D. 1981).
14
The dissent describes the law in Ohio as being similar to the laws in Michigan and Oregon
because under Ohio law “joint tenancies with right of survivorship are protected by statute.” The legal
landscape in Ohio, however, is substantially different from that in either Michigan or Oregon. Ohio
rejects a “joint tenancy” form of ownership altogether and instead has created a unique “survivorship
tenancy” by statute; the statute creating a “survivorship tenancy” even provides a fill-in-the-blank
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the vast majority of jurisdictions, either by statute, by common law, or a combination
thereof, a party to a joint tenancy with an express right of survivorship may sever the
tenancy by unilateral action and destroy the survivorship interest and thereby convert the
estate into a tenancy in common. In fact, courts in the states that have statutes most
similar to Tennessee‟s section 66-1-107 have held that a joint tenancy with an express
right of survivorship is severable by the unilateral actions of a joint tenant. See, e.g.,
Nunn v. Keith, 268 So. 2d 792, 797 (Ala. 1972); Kozacik v. Kozacik, 26 So. 2d 659, 661
(Fla. 1946); Newton v. Newton, 365 S.W.3d 565, 569 (Ky. Ct. App. 2011); Ayers v.
Petro, 417 So. 2d 912, 914 (Miss. 1982); In re Estate of Quick, 905 A.2d 471, 477 (Pa.
2006); Williams v. Williams, 27 A.2d 176, 176 (R.I. 1942); Leonard v. Boswell, 90 S.E.2d
872, 878 (Va. 1956); Harris v. Crowder, 322 S.E.2d 854, 856-57 (W. Va. 1984).
Moreover, neither Michigan nor Oregon law is consistent with the heritage of
property law in Tennessee. The tenets of Tennessee property law have developed over
the years almost exclusively through the common law.15 While Tennessee courts have
not directly addressed the severability of a joint tenancy with an express right of
survivorship, general statements made by Tennessee courts have uniformly indicated that
joint tenancies created in this state are severable. A number of Tennessee decisions have
said specifically that a joint tenant can, “at his pleasure, dispose of his share, and convey
it to a stranger, who will hold undivided, and in common with the other owner.” Tindell,
37 S.W. at 1106 (quoting Den, 10 N.J.L. at 45); see McLeroy, 40 S.W.2d at 1028;
McGhee, 234 S.W. at 509-10. Along the same lines, in a case in which two unmarried
persons attempted to create the equivalent of a tenancy by the entirety, the court held that
they could not create an inalienable estate because “inalienability is an incident only of
estates by the entireties.” Knight v. Knight, 458 S.W.2d 803, 807 (Tenn. Ct. App. 1970).
This Court has also stated that the North Carolina Act of 1784 did not “otherwise affect a
“survivorship deed” to be used when forming this type of tenancy. Ohio Rev. Code Ann. §§ 5302.17,
5302.20(A). Ohio caselaw clarifies that a survivorship tenancy can be created only by contract. See
Spitz, 604 N.E.2d at 803. Addressing this unique “survivorship tenancy,” the Ohio statutory scheme
specifies that the conveyance from a survivorship tenant to a third party does not sever the tenancy or
otherwise “alter the interest in the title of any of the other survivorship tenants who do not join in the
conveyance.” Ohio Rev. Code Ann. § 5302.20(C)(2); see Spitz, 604 N.E.2d at 803 (“There is no
common-law right to unilaterally terminate a joint tenancy with right of survivorship in Ohio, because
there is no common-law joint tenancy with right of survivorship in Ohio.”). Given the fundamental
difference between Ohio‟s approach to the issue and the law in Tennessee, this Court would be ill-advised
to rely on Ohio law to determine the issue presented in this case.
15
The fact that Tennessee property law is comprised almost exclusively of principles that have
developed through our common law magnifies the importance of precision in our common-law rules.
See, supra, notes 11, 12, & 13.
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joint tenancy, with the right of survivorship.” McLeroy, 40 S.W.2d at 1028 (emphasis
added). In other words, express language including a right of survivorship in a joint
tenancy results in the same estate as a common-law joint tenancy, not an entirely
different category of tenancy as would be the case under Michigan law.16
As Son points out, many of the references in Tennessee cases to the severability of
joint tenancies with express right of survivorship constitute obiter dicta, explanations of
general principles of property law and descriptions of the differences among the tenancies
that were not essential to the holdings rendered. For example, Taul v. Campbell
addressed whether a married couple owned property as tenants by the entirety when the
wife, who owned the subject property before she was married, transferred the property to
a straw man who immediately transferred the property to the husband and wife as a
married couple. 15 Tenn. (7 Yer.) at 319. In concluding that the husband and wife took
the property as tenants by the entirety, the Court compared tenancies by the entirety with
joint tenancies. Id. at 336-37. In the course of its reasoning, the Court explained: “[O]ne
of the incidents of a joint tenancy was the right of each of the joint tenants to alienate his
interest, thereby to sever the joint tenancy and render his co-tenant in common with the
alienee,” but “neither husband nor wife can, by common law, make any alienation of an
estate conveyed to them during coverture, so as to affect the entire right of the other on
his or her surviving.” Id. at 336 (quoting with approval the reasoning in Rogers v.
Grider, an unpublished case decided by the Supreme Court of Kentucky in 1833). Based
on this premise, the Court concluded that a “husband and wife take one indivisible
estate.” Id. at 337.
Similarly, in Tindell v. Tindell, the appellate court addressed whether the property
at issue was owned by a husband and wife as tenants by the entirety. 37 S.W. at 1105-06.
In concluding that the parties were tenants in common, the court included a description of
the differences between tenancy by the entirety and joint tenancy, comparing each aspect
in detail.17 Id. at 1106. The court noted that, while a tenancy by the entirety is
inalienable by either spouse, “severance of a joint tenancy may be made, and the estate
thereby turned into a tenancy in common, by any one of the joint owners, at his will.”
Tindell, 37 S.W. at 1106 (quoting Den, 10 N.J.L. at 45).
16
We need not decide in this appeal whether there is any method under Tennessee law for parties
to create a non-severable joint tenancy.
17
Much of the Tindell Court‟s comparison of the two tenancies came directly from Den v.
Hardenbergh, 10 N.J.L. 42, 45 (1828). Tindell, 37 S.W. at 1106 (“We cannot do better than to quote
liberally from [Den v. Hardenbergh.]”).
- 18 -
While some of these statements may not have been direct holdings, in the absence
of a definitive ruling from this Court, practitioners and courts have at times relied on
them. For example, in Bunch v. Bunch, the Court of Appeals relied on dicta in Tindell
and McLeroy to determine whether a joint tenancy can be partitioned. Bunch v. Bunch,
No. 02A01-9705-CH-00106, 1998 WL 46217, at *2 (Tenn. Ct. App. Jan. 8, 1998). In
Bunch, three brothers inherited the family farm from their father. Id. at *1. The brothers
later created a joint tenancy with an express right of survivorship in the real property “in
the belief that it would help keep the property in the Bunch family.” Id. Years later, one
of the brothers filed a partition action seeking to have the property sold and the proceeds
divided equally; the other two brothers objected. Id. The trial court ordered a sale of the
property and other relief. Id. On appeal, the two defendant brothers argued, among other
things, that a joint tenancy with an express right of survivorship is not subject to partition
because joint tenancies no longer exist. Id. at *1-2. Because joint tenancies no longer
exist, they argued, the partition statute could not have been “intended to allow the
partition of joint tenancies with the right of survivorship.” Id. at *2. The appellate court
disagreed, reasoning that only the incident right of survivorship was abolished in joint
tenancies; the parties were still permitted to create a right of survivorship through clear
language in the granting instrument. Id. (citing Jones, 206 S.W.2d at 801). The court
concluded, “Therefore, the legislature cannot be said to have disallowed the right of joint
tenants to partition on the basis that such an estate does not properly exist.” Id.The Bunch court then turned to the substantive issue, namely, whether a joint
tenant may partition a joint tenancy with an express right of survivorship over the
objection of the other joint tenants. Id. The appellate court sought guidance from cases
that had “discuss[ed] this issue tangentially or in dicta.” Id. It reasoned:
For example, in distinguishing a joint tenancy from a tenancy by the
entirety, the Tennessee Court of Chancery Appeals stated “[a] severance of
a joint tenancy may be made, and the estate thereby turned into a tenancy
in common, by any one of the joint owners, at his will.” Tindell v. Tindell,
37 S.W. 1105, 1106 (Tenn. Ch. App. 1896). Similarly, in addressing the
main issue of whether an interest in property passed to one joint tenant at
the death of the other, the Tennessee Supreme Court stated: “One joint
tenant can convey his interest in land without the joinder of the other
tenant.” McLeroy, 163 Tenn. at 127, 40 S.W.2d 1027.
Id. (emphases added). The Bunch court also relied on Bierce v. James, 11 S.W. 788(Tenn. 1889), in which the Tennessee Supreme Court noted that the partition laws at all
times made partition available to tenants in common, joint tenants, and those similarly
- 19 -
situated. Id. at *3 (quoting Bierce, 11 S.W. at 789). Although parties are free to enter
into agreements not to partition the property, the Bunch court reasoned, the parties had
not done so in that case. Id. Thus, “[o]n the authority of Bierce, Tindell, and McLeroy,”
the appellate court held, “an estate held by joint tenants with the right of survivorship
may be partitioned, or sold for partition in an appropriate case, at the instance of one or
more joint tenants, whether or not all joint tenants join in the petition.” Id.; accord Pack
v. Ponak, No. M2000-02285-COA-R3-CV, 2001 WL 703883, at *1 (Tenn. Ct. App. June
22, 2001) (following Bunch and reversing grant of summary judgment because there was
a question of fact regarding the possible existence of an agreement not to dispose of the
property).
These cases show that, despite the fact that Tennessee has never recognized
common-law joint tenancy, the common-law doctrine of severance is woven into the
fabric of Tennessee property law. In contrast to Michigan law, Tennessee courts have not
viewed common-law joint tenancies and joint tenancies with express rights of
survivorship as different tenancies. Tennessee appellate courts have not deviated from
the premise that a joint tenancy is severable by the unilateral action of a co-tenant. This
aligns with the view of the vast majority of our sister states.
In choosing to use Michigan law as a guide, the trial court below viewed Ms.
Bryant‟s express creation of survivorship interests in herself and Son in contractual terms
and emphasized that one co-tenant in a joint tenancy should not be permitted to
unilaterally extinguish the survivorship interest of the remaining co-tenant:
The express language in the granting instrument creating the joint tenancy
with the right of survivorship has many of the characteristics of a contract
between the cotenants. Each cotenant has the right to own the fee title upon
the death of the other cotenant. One cotenant should not have the right to
destroy that right of survivorship by his/her unilateral action.
Bryant, 2015 WL 5695207, at *2 (quoting the trial court). On appeal, Son presses us to
adopt this reasoning, and the dissent advocates it as well.
There is perhaps no area of the law in which predictability and consistency are
more important than property law. In choosing whether to hold that a joint tenancy with
express right of survivorship may be severed, our considerations must include which
choice would be most consistent with existing Tennessee caselaw and the majority view
in our sister states. With this landscape in mind, we decline to adopt Michigan‟s
- 20 -
approach.18 We join the majority of jurisdictions in following the common-law doctrine
of severance and hold that a joint tenancy with an express right of survivorship may be
severed “and the estate thereby turned into a tenancy in common, by any one of the joint
owners, at his will.” Tindell, 37 S.W. at 1106.
The dissent acknowledges that a majority of jurisdictions follow the view we
adopt herein. Nevertheless, the dissent imagines a scenario in which Son invested in
improvements or repairs to the Property, and further imagines that the first quitclaim deed
(executed by only Ms. Bryant) contains language used by “Ms. Bryant and her son” and
reflects “Ms. Bryant and her son‟s clear intent,” after which Ms. Bryant transferred her
property interest to Grandson and denied Son “the full value of any investments he may
have made in the property.” Based on this imagined scenario, the dissent advocates
affirming the trial court.
Respectfully, there is no basis in this record for the dissent‟s hypothetical
augmentation of the underlying facts. One could just as easily imagine a set of facts
sympathetic to Grandson, in which Ms. Bryant turned to Grandson for help and, to assist
her, he invested in improvements and repairs to the Property. Under the ruling urged by
the dissent, Ms. Bryant‟s death would result in Grandson receiving nothing whatsoever
for “any investments he may have made in the property.” A desire to give one party or
the other the “full value” of imagined “investments” in the Property should not factor into
this Court‟s decision.
More importantly, it would be imprudent for this Court to adopt an extreme
minority view on a point of property law in order to achieve a particular result in a
narrow set of hypothetical facts. No matter how well-intended, the Court must not
indulge the temptation to rule based on the desire to reach a particular result in a given
case. In no area of the law is this principle more imperative than property law.
18
We note that Michigan‟s unique approach to the law on joint tenancies has been the subject of
criticism. One commentator pointed out that scholars have struggled to describe the two different types
of joint tenancies under Michigan law and remarked that the “[t]he Michigan doctrine clearly creates traps
for the unwary.” Cooper, supra, at 966-68 (“Even the leading treatise on American property law
currently being published, Powell on Real Property, gets the Michigan law wrong . . . .”); see also Nunn
v. Keith, 268 So. 2d 792, 796-97 (Ala.1972) (overruling precedent and holding that joint tenancies with an
express right of survivorship are severable); Greiger v. Pye, 297 N.W. 173, 175 (Minn. 1941) (noting that
the Michigan view on joint tenancies “does not seem to accord with the decisions in other jurisdictions”);
Wood v. Pavlin, 467 S.W.3d 323, 324-25 (Mo. Ct. App. 2015) (rejecting the Michigan doctrine on joint
tenancies and citing Cooper, supra, at 966).
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Our decision on the single issue presented in this case must be made in a holistic
manner, taking into consideration the entire legal landscape of Tennessee‟s property
laws.19 We are mindful that lawyers and courts must extrapolate from our ruling and
apply it, along with other property law principles, to resolve legal issues presented in
countless factual circumstances. By following the vast majority of jurisdictions on the
issue raised in this case, we enable them to refer to the body of law in those other
jurisdictions when presented with an unsettled question or an issue of narrow application.
In this way, our decision does not “diminish[] the effectiveness of deeds creating joint
tenancies with right of survivorship,” but instead gives parties predictability and
consistency in the formation and interpretation of those deeds.
For all of these reasons, we join the majority of jurisdictions in following the
common-law doctrine of severance. We now apply this holding to the facts of the instant
case.
Intent of the Parties
Having resolved that joint tenancies with an express right of survivorship are
severable by the unilateral act of one co-tenant, we turn to the language of the deeds to
ascertain the parties‟ intent in this case. In construing a deed, a court‟s primary goal “is
to ascertain the grantor‟s intent from the words of the deed as a whole and from the
surrounding circumstances.” Griffis v. Davidson Cnty. Metro. Gov’t, 164 S.W.3d 267,
274 (Tenn. 2005) (citations omitted); see Dalton v. Eller, 284 S.W. 68, 70 (Tenn. 1926);
Bennett v. Langham, 383 S.W.2d 16, 18 (Tenn. 1964); Hutchison v. Board, 250 S.W.2d
82, 84 (Tenn. 1952); see also Runions, 207 S.W.2d at 1019 (reasoning that “the
conveyance should operate, as nearly as possible, to produce the effect intended by the
parties”). “Words of a deed are to be given their common meaning unless a technical
meaning is clearly intended.” Griffis, 164 S.W.3d at 275; see Pryor v. Richardson, 37
S.W.2d 114, 114 (Tenn. 1931) (“Technical rules in the construction of conveyances in
this state have been abandoned, and, where possible, the intention of the grantor, as
ascertained from a consideration of the entire instrument, is given effect.”). A grantor‟s
intent with respect to the type of ownership created may be established by extrinsic
evidence to “place ourselves as nearly as possible in the place of the grantor.” Griffis,
164 S.W.3d at 275; see Griffin, 632 S.W.2d at 535; Dalton, 284 S.W. at 70.
19
The dissent concludes with a call for action by our Legislature to consider legislation “to
protect a co-tenant‟s investment in property” and allow severance only upon the agreement of both co-
tenants. Respectfully, considering the complexity of Tennessee property law and the fact that it is unlike
the law in any of the states upon which the dissent relies, we caution that any such legislation could be
problematic.
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To ascertain Ms. Bryant‟s intent in her conveyances of the subject Property, we
look first to the deeds at issue, the June 2009 deed the September 2010 deed. To review,
Ms. Bryant executed the June 2009 quitclaim deed, conveying the Property to Son and
herself, “for the purpose of creating a joint tenancy with right of survivorship.” It is
undisputed that, under Tennessee law, this language was sufficient to create a joint
tenancy with an express right of survivorship. Thus, under the June 2009 deed, Ms.
Bryant and Son became joint tenants, each owning a proportional (one half) share, with
the survivor to take the Property in fee simple upon the death of the other. See Tindell,
37 S.W. at 1106.
Ms. Bryant later executed the September 2010 deed, which purported to “hereby
quitclaim undivided interest, right, and title” to the Property to Grandson. From this
language, it is unclear whether Ms. Bryant sought to convey to Grandson the whole
property in fee simple or her own undivided interest.20 Regardless, Ms. Bryant could
convey no more than what she owned. In Tennessee, a deed that seeks to grant an
interest in excess of what the grantor owns “will be void only as to the excess and will be
construed as a conveyance of that which it was in [her] power to convey.” Sloan v.
Sloan, 184 S.W.2d 391, 392 (Tenn. 1945).
As we have explained, under the common-law doctrine of severance, when one
co-tenant in a joint tenancy conveys his or her interest to a third person, the joint tenancy
is severed; it becomes a tenancy in common between the third person and the remaining
joint tenant, and the right of survivorship is destroyed.21 See 2 TIFFANY REAL PROP. §
425 & n.64.10 (3d ed.); 20 AM. JUR. 2d Cotenancy and Joint Ownership §§ 21-22
(2015); Allen, supra, at 918, § 2; see also Tindell, 37 S.W. at 1106. Thus, by transferring
all of her interest in the Property to Grandson without limitation, Ms. Bryant severed the
joint tenancy with Son.
In reaching the opposite conclusion, the Court of Appeals reasoned that the
reference to the June 2009 deed in the derivation clause of the September 2010 deed
20
The deed states that Ms. Bryant does “hereby quitclaim undivided interest.” The interpretive
problem is whether she meant to convey “an” undivided interest or “her” undivided interest, this adjective
being omitted from the deed.
21
For a discussion on other actions by a joint tenant that would sever the joint tenancy, see
generally W. W. Allen, What Acts By One or More of Joint Tenants Will Sever or Terminate the Tenancy,
64 A.L.R.2d 918 (1959).
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showed Ms. Bryant‟s intent to transfer only her lifetime interest and a contingent
remainder to Grandson. See Bryant, 2015 WL 5695207, at *4. We must respectfully
disagree with this interpretation. The derivation clause cited by the appellate court is
required in any “writing affecting interests in real property” before it can be registered;
we do not view it as an indication of Ms. Bryant‟s intent to limit the interest conveyed to
Grandson. See Tenn. Code Ann. § 66-24-110(a) (2015). Accordingly, we hold that Ms.
Bryant‟s conveyance of her interest in the Property to Grandson severed her joint tenancy
with Son. Son and Grandson thereby became tenants in common, and the survivorship
interest formerly held by both Son and Ms. Bryant was destroyed.
Consequently, we must conclude that the trial court and the Court of Appeals both
erred in holding that Son was entitled to summary judgment. Accordingly, we reverse
the trial court‟s grant of summary judgment in favor of Son and remand the cause to the
trial court for further proceedings.
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CONCLUSION
Following the common-law doctrine of severance, we hold that a joint tenancy
with an express right of survivorship may be severed by the unilateral action of one of the
joint tenants and that doing so converts the estate into a tenancy in common and destroys
the survivorship interests of the original joint tenants. Applying this holding to the deeds
at issue in this case, we conclude that the trial court erred in granting summary judgment
to Son. Accordingly, the decisions of the trial court and the Court of Appeals are
reversed, and the case is remanded to the trial court for further proceedings consistent
with this Opinion. Costs on appeal are to be taxed to Appellee Darryl F. Bryant, Sr., for
which execution may issue, if necessary.
_________________________________
HOLLY KIRBY, JUSTICE
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