Harms v. Sprague - 119 Ill. App. 3d 503, 75 Ill. Dec. 155, 456 N.E.2d 976 (1983)

Rule:

Four unities are required for the creation and continuation of a joint tenancy: time, title, interest, and possession. That a joint tenancy will be destroyed by the destruction of any one of its necessary unities is axiomatic.

Facts:

William and John Harms, brothers, owned an improved lot in Roodhouse as joint tenants with the right of survivorship. John mortgaged his interest in the property to the Simmonses and died while the mortgage was still outstanding; his will left all his real and personal property to Charles Sprague. William Harms brought this action to determine the title and ownership of the property, naming as defendants Sprague, the devisee, and the Simmonses, the mortgagees. Sprague asserted his interest as a tenant in common, subject to the mortgage lien. The Simmonses asked that the mortgage be regarded as an existing lien, regardless of the ownership of the property. The trial court held that the mortgage severed the joint tenancy, reducing it to a tenancy in common, and that an undivided one-half interest in the property passed to Sprague on John's death, encumbered by the mortgage. William Harms appealed.

Issue:

Did a mortgage by one joint tenant of his interest in property that he owns in joint tenancy with another sever the joint tenancy?

Answer:

No.

Conclusion:

The court reversed the trial court's ruling, holding that the mortgage by John of his interest in the property that he owned in joint tenancy with the joint tenant did not sever the joint tenancy. The court found that there was sufficient authority that non-mortgage liens did not sever a joint tenancy. The court reasoned that since a mortgage was a lien, it had the same effect on the joint tenancy as a lien created in other ways. The court also held that the joint tenant's ownership of the property was unencumbered by the mortgage lien because a surviving joint tenant owned the property free and clear of a memorial of judgment that had been filed against the other joint tenant's interest during his lifetime.