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When such a joint tenancy is created, the right of survivorship inures by operation of law but that right is so qualified that (unlike tenancies by the entirety, peculiar to the estate of husband and wife) it is lost if the tenancy is severed by a conveyance of the interest of one of the joint tenants. In that event the former cotenant and the third person become tenants in common.
The real estate was conveyed to plaintiff Magnolla McClendon and her cousin Alexander Johnson as joint tenants with right of survivorship. The cousin conveyed his interest in the joint tenancy to himself and to defendant Herman Johnson as joint tenants. Plaintiff contended that she and her deceased cousin held life estates in the land until the fee vested in plaintiff as the survivor of them, and that the deed made by her cousin to defendant conveyed nothing more than her cousin's life estate. Defendant contended that the conveyance to plaintiff and her cousin vested in them a classical joint tenancy, whereby they became the fee simple owners of the property as joint tenants and that, when the cousin conveyed his interest therein to himself and defendant as joint tenants, the joint tenancy theretofore existing between plaintiff and the cousin was severed by operation of law and defendant and the cousin became the owners of an undivided one-half interest in said real estate as joint tenants. Upon the death of the cousin, defendant became and was now the owner of an undivided one-half interest in the real estate. The trial court disagreed with plaintiff and held that plaintiff and defendant were the owners of the real estate as tenants in common, each owned an undivided one-half interest, and ordered partition and sale of the property. Plaintiff appealed and the court affirmed.
Was the trial court correct in holding that plaintiff and defendant were the owners of the real estate as tenants in common?
The court found that it was clear that the plaintiff and her cousin took and held fee simple title to the real estate in a joint tenancy. The court held that the cousin was empowered to convey his interest in the real estate directly to himself and defendant as joint tenants and not as tenants in common. As such, upon the cousin's death, there being no prior severance of the joint tenancy existing between him and defendant, the latter took title in fee to an undivided one-half interest in the whole of the real estate as a tenant in common with plaintiff, each owning an undivided one half as tenants in common. Accordingly, the trial court's judgment that plaintiff and defendant were the owners of the real estate as tenants in common, each owning an undivided one-half interest, and ordering partition and sale of the property was affirmed.