DARRYL F. BRYANT, SR.
DARRYL F. BRYANT, JR.
Session Date: June 2, 2016
by Permission from the Court of Appeals Chancery Court for
Davidson County No. 141059I Claudia Bonnyman, Chancellor
granted permission to appeal in this case to address whether
a joint tenancy with an express right of survivorship can be
severed by the unilateral actions of one of the co-tenants.
The owner of the property at issue in this appeal executed a
deed conveying the property to herself and to her son in a
joint tenancy with right of survivorship. The same grantor
later executed a quitclaim deed granting her interest in the
property to her grandson (the son's child). After the
grantor died, the son filed a declaratory judgment action
against the grandson, claiming that the son was the rightful
owner of the property in fee simple as the surviving joint
tenant under the first deed. In response, the grandson
asserted that the grantor's second deed severed the joint
tenancy, conveyed the grantor's one-half interest to him,
and destroyed the son's right of survivorship. The trial
court granted the son's motion for summary judgment, and
the Court of Appeals affirmed. We reverse. Following the
common-law doctrine of severance, we hold that a joint
tenancy with an express right of survivorship may be severed
by the unilateral action of one of the co-tenants, and that
doing so converts the estate into a tenancy in common and
destroys the survivorship interests of the original joint
tenants. In this case, the grantor's second deed,
conveying her interest in the property to the grandson,
severed the joint tenancy and destroyed the son's right
of survivorship, so the son and the grandson own the property
in equal parts as tenants in common.
R. App. P. 11 Appeal by Permission; Judgment of the Trial
Court and Court of Appeals Reversed; Case Remanded for
Johnston Ellis, IV, Old Hickory, Tennessee, for the
Defendant/Appellant Darryl F. Bryant, Jr.
B. Buchanan, Nashville, Tennessee, for the
Plaintiff/Appellee, Darryl F. Bryant, Sr.
Kirby, J., delivered the opinion of the court, in which
Jeffrey S. Bivins, C.J., and Cornelia A. Clark and Roger A.
Page, JJ., joined. Sharon G. Lee, J., filed a dissenting
and Procedural Background
April 2006, James and Molly Bryant, husband and wife,
purchased property on Hadley Avenue in Old Hickory, Davidson
County, Tennessee ("the Property"). In February
2009, James Bryant died, and Molly Bryant became the sole
owner of the Property.
months after Mr. Bryant's death, on June 9, 2009, Ms.
Bryant executed a quitclaim deed that conveyed the Property
to herself and her son, Plaintiff/Appellee Darryl Bryant, Sr.
("Son"), as joint tenants with an express right of
survivorship. The deed to Ms. Bryant and Son states: "I,
Molly Bryant, a widow, have this day bargained and sold, and
do hereby transfer and convey unto Molly Bryant and Darryl
Bryant[, Sr., ] for the purpose of creating a joint tenancy
with right of survivorship, . . . all my estate, right,
title, interest and claim in and to [the Property]."
over a year later, on September 2, 2010, Ms. Bryant executed
another quitclaim deed on the same Property. This quitclaim
deed purported to convey the Property to Son's child,
Defendant/Appellant Darryl F. Bryant, Jr., who is Ms.
Bryant's grandson ("Grandson"). The deed states
that Ms. Bryant does "hereby quitclaim undivided
interest, right, and title [in the Property] to
[Grandson]." Both the June 2009 deed and the September
2010 deed were duly recorded with the Register of Deeds for
November 2013, Ms. Bryant died at the age of eighty-nine. At
the time of Ms. Bryant's death, Grandson was living with
her in the home on the Property.
2014, Son filed a complaint against Grandson in the Chancery
Court of Davidson County, Tennessee, seeking a declaratory
judgment and possession of the Property. In the complaint,
Son averred that, because the June 2009 quitclaim deed
granted Son a right of survivorship, he became the sole owner
of the Property in fee simple upon Ms. Bryant's death. He
asserted, "The only interest that [Ms. Bryant] conveyed
to [Grandson] was her survivorship interest whereby she would
own the Property if she survived [Son]." Thus, Son
contended, upon Ms. Bryant's death, Grandson was left
with no interest in the Property. Son asked the trial court
to enter "an order declaring that the Property is now
vested entirely in [Son] and that [Grandson] has no ownership
in the Property, legal or equitable, whatsoever." Son
also sought an order requiring Grandson to vacate the
Property. Soon after filing the complaint, Son filed a motion
for summary judgment claiming that, on the undisputed facts,
he was entitled to judgment as a matter of law.
response, Grandson filed a motion to strike Son's summary
judgment motion and to dismiss the complaint for failure to
state a claim upon which relief could be granted.
See Tenn. R. Civ. P. 12.02(6). Grandson claimed in
his motion that, in the September 2010 deed, Ms. Bryant
conveyed to him her one-half interest in the property and
that this conveyance severed Son's right of survivorship.
Grandson asserted that Son's complaint was "based on
an improper legal premise that the co-tenants in a Joint
Tenan[cy] with the Right of Survivorship are not at liberty
to unilaterally terminate the Right of Survivorship." He
contended that, when Ms. Bryant conveyed her interest to him
(Grandson), Son and Grandson became equal owners in the
Property as tenants in common. The trial court denied
Grandson's motion to dismiss and scheduled a hearing date
for Son's summary judgment motion.
October 2014, the trial court conducted the scheduled hearing
on Son's motion for summary judgment. Ultimately, the
court ruled in favor of Son. It approached the issue as one
of first impression; looking to the law in other
jurisdictions, the trial court decided to take guidance from
the law in Michigan. Following Michigan law, the trial court
held that a joint tenancy with an express right of
survivorship is comprised of a joint life estate with dual
contingent remainders and that the contingent remainders are
not subject to being destroyed by the actions of a co-tenant.
Slip Op. at 3-4 (following Wengel v. Wengel, 714
N.W.2d 371, 378 (Mich. Ct. App. 2006) (citing Albro v.
Allen, 454 N.W.2d 85');">454 N.W.2d 85, 93 (Mich. 1990))). Accordingly,
the trial court held, each co-tenant in a joint tenancy with
right of survivorship "has the right to own the fee
title upon the death of the other cotenant, " and
"[o]ne co[-]tenant should not have the right to destroy
that right of survivorship by his/her unilateral
action." Id. at 4. On that basis, the trial
court granted summary judgment in favor of Son. Grandson
Court of Appeals affirmed the trial court's decision,
albeit on a different basis. Bryant v. Bryant, No.
M2014-02379-COA-R3-CV, 2015 WL 5695207, at *4 (Tenn. Ct. App.
Sept. 28, 2015). The appellate court reasoned that "Ms.
Bryant's intent, as evidenced by the language she used in
her deeds, determines the outcome in this case."
Id. It first observed that the June 2009 deed
plainly reflected Ms. Bryant's intent to convey to Son a
joint tenancy with an express right of survivorship. The
appellate court then pointed out that the September 2010 deed
to Grandson included a reference to the June 2009 deed to
Son. The reference was contained in the September 2010
deed's derivation clause, which gives information about
the source of the grantor's title. The relevant part of
the derivation clause stated: "Reference is also made to
instrument number 20090611-0054308, " which is the June
2009 deed. Id. Ms. Bryant's reference to the
June 2009 deed in the September 2010 deed to Grandson, the
Court of Appeals surmised, indicated an intent to convey to
Grandson "her interest in the Property, including her
right of survivorship, but only in the event that she
outlived [Son]." Id. The appellate court
explained: "Ms. Bryant would have had no reason to
reference expressly her earlier deed to [Son] unless she
wanted [Grandson] to be aware of the joint tenancy and
survivorship interest she had already conveyed to his
father." Id. It added, "If [Son] had
predeceased Ms. Bryant, then [Grandson] would have become the
fee simple owner of the Property upon [Son's]
death." Id. Because Ms. Bryant predeceased Son,
the appellate court concluded, Son "is the sole
surviving joint tenant, and he now owns the Property in fee
simple." Id. We granted Grandson's
application for permission to appeal.
and Standard of Review
On appeal, Grandson presents four issues for our review:
1. Under Tennessee law, what are the characteristics of a
joint tenancy with a right of survivorship? How may the right
of survivorship be terminated in a joint tenancy?
2. Does the grantor's creation of a joint tenancy give
rise to any contract rights between the joint tenants as
suggested by the trial court?
3. Does the derivation clause in a deed show intent of the
grantor as suggested by the Court of Appeals?
4. When two parties hold real property located in Tennessee
as "joint tenants with right of survivorship, " and
one of those parties independently conveys all
"interest, right, and title" to a third party, what
is the resulting estate in land between the original joint
tenant and the third party?
perceive the pivotal issue to be whether the joint tenancy
with an express right of survivorship established in the June
2009 deed was severed by the actions of Ms. Bryant in
executing the September 2010 deed to Grandson. If so, Son and
Grandson own the Property in equal parts as tenants in
common. If not, Son now owns the Property in fee simple as
the surviving joint tenant under the June 2009 deed.
appeal arises out of the trial court's grant of summary
judgment, so we review the trial court's decision de
novo with no presumption of correctness. Rye v.
Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235,
250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d
618, 622 (Tenn. 1997)); Parker v. Holiday Hospitality
Franchising, 446 S.W.3d 341, 346 (Tenn. 2014). Summary
judgment should be granted only when "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law." Tenn. R. Civ. P. 56.04. Conversely, summary
judgment should not be granted when there are genuine
disputes of material fact. Rye, 477 S.W.3d at
264-65; Parker, 446 S.W.3d at 346. In the instant
case, the material facts are not disputed. We are presented
with only questions of law, which are reviewed de
novo, affording no deference to the decisions of the
lower courts. See Rye, 477 S.W.3d at 250.
Under Common Law
recognizes three basic forms of concurrent ownership in real
property: joint tenancy, tenancy in common, and tenancy by
the entirety. See Griffin v. Prince, 632 S.W.2d 532,
535 (Tenn. 1982). A brief review of these tenancies is
helpful to our discussion.
common law, the type of tenancy that results from a
conveyance of real property to two or more persons depends on
the whether the four unities-interest, title, time, and
possession-exist at the time of conveyance. Bennett v.
Hutchens, 179 S.W. 629, 631 (Tenn. 1915) (describing the
four unities as having "one and the same interest,
accruing by one and the same conveyance, commencing at one
and the same time, and held by one and the same undivided
possession" (quoting 2 William Blackstone, Commentaries
180)); 2 Tiffany Real Prop. § 418 (3d ed. 2016) (quoting
2 William Blackstone, Commentaries 180). If the four unities
exist at the time of the conveyance and the conveyance is
made to a married couple, the conveyance results in a tenancy
by the entirety, absent language indicating a contrary
intent. Bennett, 179 S.W. at 631. If
the four unities exist but the conveyance is to unmarried
persons, the conveyance results in a joint tenancy; by
operation of law, a common-law joint tenancy includes a right
of survivorship even when no words of survivorship are used
in the granting instrument. Peebles v. Peebles, 443
S.W.2d 469, 470 (Tenn. 1969) (quoting Jones v.
Jones, 206 S.W.2d 801, 803 (Tenn. 1947)); Bunch v.
Bunch, No. 02A01-9705-CH-00106, 1998 WL 46217, at *1
(Tenn. Ct. App. Jan. 8, 1998) (citing Jones, 206
S.W.2d at 803); see also Durant v. Hamrick, 409
So.2d 731, 742 (Ala. 1981) (Adams, J., dissenting)
(commenting that "to say 'joint tenancy with right
of survivorship' is redundant"). If, however, the
four unities are not present at the time of the
conveyance, the conveyance results in a tenancy in common,
which does not include a right of survivorship. See
Runions v. Runions, 207 S.W.2d 1016, 1017 (Tenn. 1948)
(holding that, when a husband first acquired property and
then conveyed it to his wife, they could not hold the
property as tenants by the entirety or joint tenants because
"the four unities did not coincide, " so the deed
created a tenancy in common with a right of survivorship).
are important differences among the three types of common-law
tenancies. We summarize the differences as background for our
tenancy by the entirety is held exclusively by persons who
are legally married. It is ancient in origin and remains
firmly established in Tennessee. Griffin, 632
S.W.2d at 534-35; see Tenn. Code Ann. §§
36-3-505, 31-1-108. Tenancy by the entirety is based on the
concept that those who are married are not separate persons;
rather, they "are but one person." Tindell v.
Tindell, 37 S.W. 1105, 1106 (Tenn. Ct. App. 1896)
(quoting Den v. Hardenbergh, 10 N.J.L. 42, 45
(1828)); see Taul v. Campbell, 15 Tenn. (7 Yer.)
319, 333 (1835) (noting that a husband and wife "take
but one estate, as a corporation would take, being by the
common law deemed but one person"). Consequently,
co-tenants in a tenancy by the entirety do not hold their
interest by moieties (by parts), they hold by the entirety:
"Each is not seised of an undivided moiety, but both are
. . . seised of the whole. They are seised, not per my et
per tout [by the half and by the whole], but solely and
simply per tout [by the whole]."
Tindell, 37 S.W. at 1106 (quoting Den, 10
N.J.L. at 45).
property is held in a tenancy by the entirety, upon the death
of one spouse, the survivor continues to own the whole in fee
simple. Technically, then, the surviving spouse does not
acquire the fee simple interest through a right of
survivorship; the survivor "enjoys the whole [after the
death of the other spouse], . . . not because any new or
further estate or interest becomes vested, but because of the
original conveyance, and of the same estate and same quantity
of estate as at the time the conveyance was perfected."
Id. (quoting Den, 10 N.J.L. at 45)
(explaining that "[b]etween husband and wife, the
jus accrescendi [right of survivorship] does not
exist"); see Cole Mfg. Co. v. Collier, 31 S.W.
1000, 1001 (Tenn. 1895); Moore v. Cole, 289 S.W.2d
695, 698 (Tenn. 1956); Taul, 15 Tenn. (Yer.) at
common law, the primary difference between holding in joint
tenancy and tenancy in common is that joint tenancy includes
a right of survivorship between the co-tenants by operation
of law, whereas tenancy in common does not. See
Peebles, 443 S.W.2d at 470; Bunch, 1998 WL
46217, at *1. While a tenancy by the entirety can consist
only of two persons seized of one estate, both joint tenancy
and tenancy in common "impl[y] a plurality of
persons" and "each of the owners has an undivided
moiety, or other proportional part, of the whole
premises." Tindell, 37 S.W. at 1106 (quoting
Den, 10 N.J.L. at 45); see Taul, 15 Tenn.
(7 Yer.) at 336 (citation omitted) (noting that, unlike a
tenancy by the entirety, "[t]he estate of joint tenants
is [a] unit, made up of divisible parts subsisting in
different natural persons").
in common are jointly seized of the whole estate, each having
an equal right of entry and possession . . . ."
Moore v. Cole, 289 S.W.2d 695, 697 (Tenn. 1956).
Right of survivorship is not an incident of tenancy in
common; however, the grantor may include in the instrument of
conveyance express language attaching a right of survivorship
to the tenancy in common. See Runions, 207 S.W.2d at
1017 ("Even a tenancy in common may have a right of
survivorship attached to it if the grantor expresses an
intention that it shall be so." (quoting Mitchell v.
Frederick, 170 A. 733, 735-36 (Md. 1934))).
Doctrine of Severance
is the termination of a tenancy "by any act which is
inconsistent with its continued existence, or which operates
to destroy its essential unities or one or some of
them." W. W. Allen, Annotation, What Acts By One or
More of Joint Tenants Will Sever or Terminate the
Tenancy, 64 A.L.R.2d 918, § 2 (1959) (footnote
omitted); 20 Am. Jur. 2d Cotenancy and Joint
Ownership § 21 (2015). Because spouses in a tenancy
by the entirety are treated as one person, a spouse in such a
tenancy cannot sever it unilaterally by transferring a
portion of the property without the assent of the other
spouse, as doing so would destroy the survivor's right to
own the whole. Tindell, 37 S.W. at 1106 (quoting
Den, 10 N.J.L. at 45); Taul, 15 Tenn. (7
Yer.) at 336. In contrast, in a common-law joint tenancy, any
joint tenant can, "at his pleasure, dispose of his
share, and convey it to a stranger, who will hold undivided,
and in common with the other owner." Tindell,
37 S.W. at 1106 (quoting Den, 10 N.J.L. at 45);
see McLeroy v. McLeroy, 40 S.W.2d 1027, 1028 (Tenn.
1931) (citations omitted) ("One joint tenant can convey
his interest in land without the joinder of the other
tenant."); McGhee v. Henry, 234 S.W. 509,
509-10 (Tenn. 1921) (indicating that, unlike in a tenancy by
the entirety, a joint tenant "can separate his interest
from the other"); Knight v. Knight, 458 S.W.2d
803, 807 (Tenn. Ct. App. 1970) (noting that
"inalienability is an incident only of estates by the
entireties"); see also Bunch, 1998 WL 46217, at
*2 (relying in part on Tindell and McLeroy
to hold that, absent agreement to the contrary, a joint
tenancy may be partitioned at the request of only one of the
severability of a common-law joint tenancy is based on the
premise that, once any of the four unities is destroyed, the
estate by definition is no longer a joint tenancy; it becomes
a tenancy in common. See Tindell, 37 S.W. at 1106
(citation omitted); see also United States v. Craft,
535 U.S. 274, 280 (2002). When one joint tenant severs his
interest by conveying it to a third person, the joint tenancy
becomes a tenancy in common between the third person and the
remaining joint tenant(s), and the right of survivorship is
destroyed. See 2 Tiffany Real Prop. § 425 &
n.64.10 (3d ed.); 20 Am. Jur. 2d Cotenancy and Joint
Ownership § 21 (2015). One commentator has
"In the ancient language of the law, joint tenants were
said to hold per my et per tout, or in plain words,
'by the moiety or half and by all.'" This
statement, which of course is strictly accurate only in the
case of there being but two joint tenants, serves to indicate
the conception of a joint tenancy as one which allows each
owner to hold a particular share which he may alienate, while
at the same time he and the other or others hold the entire
property as by a single ownership. The theoretical
peculiarity of a joint tenancy at common law, and also by the
law as it still generally prevails, is the coexistence of the
four unities, the unity of interest, the unity of title, the
unity of time, and the unity of possession, that is to say,
"joint tenants have one and the same interest accruing
by one and the same conveyance, at one and the same time, and
held by one and the same undivided possession." The
principal practical aspect of a joint tenancy consists in the
fact that on the death of one of the joint tenants, no
severance of his interest having theretofore occurred, the
exclusive title inures to the surviving joint tenant or
From these peculiarities of ownership it follows logically,
and also under the law, that joint tenants can terminate
the joint tenancy by any act which is inconsistent with its
continued existence, or which operates to destroy its
essential unities or one or some of them. So to the extent of
the interest affected, and therefore in toto where there are
only two joint tenants, a joint tenancy is severed by any act
of a joint tenant which operates to destroy one or more of
Allen, supra, at § 2 (emphasis added)
(footnotes omitted); see Tindell, 37 S.W. at 1106
("A severance of a joint tenancy may be made, and the
estate thereby turned into a tenancy in common, by any one of
the joint owners, at his will." (quoting Den,
10 N.J.L. at 45)); see also Craft, 535 U.S. at 280
(stating generally that, when one joint tenant conveys his
interest to another, the estate is severed, which means it is
"converted to a tenancy in common with each tenant
possessing an equal fractional share"). Of course,
"[a]n ownership interest of a tenant ...