Smith v. Rucker

357 S.C. 532, 593 S.E.2d 497 (Ct. App. 2004)



S.C. Code Ann. § 27-7-40 (2002) provides that a joint tenancy with rights of survivorship is conclusively established when a deed grants land to two or more persons as joint tenants with rights of survivorship, and not as tenants in common. However, this language is not the only means by which joint tenancies are created, but rather is in addition to any other methods for the creation of a joint tenancy in real estate which may exist by law.


After their marriage, defendant wife deeded planitiff husband a one-half interest in her home and land. Plaintiff filed a complaint against defendant, seeking partition of the subject property. Defendant claimed that the property was not subject to partition because she and plaintiff owned the property as tenants in common for life with indestructible survivorship rights. The deed at hand unquestionably created survivorship rights. The trial court assigned the action to a master-in-equity, who granted plaintiff’s summary judgment motion and partitioned the property. The appellate court affirmed the master's decision.


Could the act of defendant wife deeding to plaintiff husband a one-half interest in her home and land, which in the process also created survivorship rights, be considered as creating a joint tenancy?




The deed in question satisfied the four unities required to create a joint tenancy. Both parties had the same interest, created by the same conveyance, which commenced at the same time, and they held the property in undivided possession. Furthermore, the deed clearly and unambiguously granted the right of survivorship, a distinguishing characteristic of joint tenancies.

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