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Flatrock River Lodge v. Stout - No. 18A-CC-1919, 2019 Ind. App. LEXIS 261 (Ct. App. June 14, 2019)


A joint tenant may alienate his interest in real estate or his interest may be alienated by another. A joint tenant may sell or mortgage his interest to a third party, and his interest is subject to execution by a judgment lien creditor.


In 1985, Maurice and Lucille Stout deeded 46 acres of real estate in Rush County to their son Morris and their granddaughter Tonia as joint tenants with right of survivorship ("the real estate"). On September 2, 2016, Flatrock, a health care provider, filed a complaint on account against Morris seeking judgment for a balance Morris owed Flatrock in the amount of $39,238.28 plus attorney's fees. Flatrock also filed a notice of lis pendens with respect to the real estate in the Rush County Recorder's Office. On September 16, Tonia moved to intervene, and the trial court granted her motion. Thereafter, Flatrock and Morris entered into an agreed judgment, approved by the trial court on September 23, whereby judgment was entered against Morris and in favor of Flatrock in the amount of $40,144.28. The Rush County Clerk entered the judgment in the record of judgments and orders ("RJO") on September 27. On January 18, 2018, Flatrock filed a Trial Rule 69 motion for execution and foreclosure on the judgment lien. In response, Tonia filed a memorandum stating that, because she and Morris had acquired title to the real estate as joint tenants with right of survivorship, their joint interest should be treated like a tenancy by the entireties. Thus, Tonia asserted that Morris' interest in the real estate was exempt by statute from execution. Following a hearing on March 12, the court denied Flatrock's motion. Flatrock filed a motion to correct error, which the court also denied. On August 14, Flatrock filed a notice of appeal. And on October 14, Morris died.


Is Morris' interest in the real estate as a joint tenant exempt from execution on Flatrock's judgment lien during his lifetime?




The trial court erred when it denied Flatrock's motion to execute on its judgment lien. Flatrock's judgment lien against Morris was a valid and subsisting lien upon his interest in the real estate, which he owned with Tonia as joint tenants with right of survivorship. The judgment lien was not extinguished when Morris died. As the surviving joint tenant, Tonia acquired Morris' interest in the real estate by operation of law, subject to the lien. The lien was subject to execution and judicial foreclosure in the manner provided under Trial Rule 69. And, if another party was the purchaser of Morris' interest at an execution sale, Tonia and the purchaser would each own an undivided interest as tenants in common.

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