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#Post#: 29--------------------------------------------------
Harms v. Sprague
By: SunsetSailor Date: January 27, 2011, 10:19 pm
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FACTS: William (P) and John Harris owned property in joint
tenancy. John executed a mortgage favoring Simmons, who latter
assigned his interest to Sprague (D). After John Harris died,
William (P) contended that the mortgage had died with John and
brought an action to quiet title.
Quiet Title: Title is the sum total of legally recognized
rights to the possession and ownership of property. In the case
of real property, an action to confirm title, sometimes referred
to as an action to "quiet title" may be brought to affirm
ownership of the property when others claim an interest in such
property.
T1: w & j (jtwros)
T2: Sprague buys property & j cosigns/j mortgages his portion of
the property he holds as a joint tenant w/ w.
T3: j dies
PROCEDURE:
o Trial Court: held that that mortgage given by John
Harms to defendants Carl and Mary Simmons severed the joint
tenancy & found that the mortgage survived the death of Harms as
a lien against the undivided one-half interest in the property
which passed to Sprague by and through the will of the deceased.
o Court of Appeals: Reversed, finding that the
mortgage given by one joint tenant of his interest in the
property does not sever the joint tenancy; held that the P, as
the surviving joint tenant, owned the property in its entirety,
unencumbered by the mortgage lien
o Supreme Court: Judgment of the appellate court is
affirmed
ISSUE:
1. Is a joint tenancy severed when less than all of the joint
tenants mortgage their interest in the property?
2. Does such a mortgage survive the death of the mortgager as
a lien on the property?
RULES:
o A mortgage on a joint tenant’s interest does not
survive the mortgager (BRIEF)
o A lien on a joint tenant’s interest in property will
not effectuate a severance of the joint tenancy, absent the
conveyance by a deed following the expiration of a redemption
period. It follows, therefore, that if Illinois perceives a
mortgage as merely a lien on the mortgagor’s interest in the
property rather than a conveyance of title from mortgagor to
mortgagee, the execution of a mortgage by a joint tenant, on his
interest in the property, would not destroy the unity of title
and sever the joint tenancy (286-287)
o A surviving joint tenant succeeds to the share of
the deceased joint tenant by virtue of the conveyance which
created the joint tenancy, not as the successor of the deceased.
The property right of the mortgaging joint tenant is
extinguished at the moment of his death (288)
Mortgages
o Can be construed as being limited titles
o Can be construed as being merely a lien
o Hybrid View: Mortgages are liens before you go into
default, and after it is limited title
ANALYSIS:
* P’s right of survivorship became operative upon the death
of his brother. As such, P is now the sole owner of the estate
in its entirety
* While John Harms was alive, the mortgage existed as a lien
on his interest in the joint tenancy. Upon his death, his
interest ceased to exist and along with it the lien of the
mortgage
* Mortgage is gone, but John’s debt of 7,000 must still be
paid, but from his general assets
* If John would have survived William, the bank would have
won b/c the bank then would have had a mortgage over the entire
property and not just John’s original portion.
CONCLUSION: Judgment of the Court of Appeals is
affirmed
Pgs. 291-300
4. Relations Among Concurrent Owners
1. Partition
* PartitionThe privilege of each co-owner to
transform a concurrent estate into estates held in severalty
(partition in kind (default method), partition in sale,
partition in rent)
* The action of partition is available to any joint tenant
or tenant in common (unavailable to tenants by the entirety)
Delfino v. Vealencis
FACTS: The Delfinos (P) owned an undivided 99/144 interest in
land, in which Vealencis (D) owned an undivided 45/144 interest.
The property was held as a tenancy in common. Delfino (P)
wanted to develop residential housing on the tract and sought a
partition sale. Vealencis (D) defended, contending partition in
kind. She used her portion of the property for the operation of
a rubbish removal business.
PROCEDURE:
o Trial Court: Held that a partition in kind could
not be had without ‘material injury’ to the respective rights of
the parties, and therefore ordered that the property be sold at
auction by a committee and that the proceeds be paid into the
court for distribution to the parties; D appealed
o Supreme Court: Remanded for a new trial
ISSUE: Whether the Superior Court properly ordered the sale of
property owned by the plaintiffs and the defendant as tenants in
common
RULES:
o Partition sales are employed ONLY where partition in
kind is unworkable (BRIEF)
o It is clear that a partition by sale should be
ordered only when two conditions are satisfied: (1) the physical
attributes of the land are such that a partition in kind is
impracticable or inequitable, and (2) the interests of the
owners would better be promoted by a partition by sale (294)
o Burden is on the party requesting the partition by
sale to demonstrate that such a sale would better promote the
owner’s interests (294)
ANALYSIS:
o Since the property in this case may practicably be
physically divided, and since the interests of all owners will
better be promoted if a partition by sale, and that, under the
facts as found, the defendant is entitled to a partition of the
property in kind.
CONCLUSION: Remanded for a new trial consistent with this
opinion.
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