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Bryant v. Bryant

Supreme Court of Tennessee, Nashville

April 19, 2017

DARRYL F. BRYANT, SR.
v.
DARRYL F. BRYANT, JR.

          Session Date: June 2, 2016

         Appeal by Permission from the Court of Appeals Chancery Court for Davidson County No. 141059I Claudia Bonnyman, Chancellor

         We 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.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Trial Court and Court of Appeals Reversed; Case Remanded for Further Proceedings

          Leroy Johnston Ellis, IV, Old Hickory, Tennessee, for the Defendant/Appellant Darryl F. Bryant, Jr.

          Ronald B. Buchanan, Nashville, Tennessee, for the Plaintiff/Appellee, Darryl F. Bryant, Sr.

          Holly 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 opinion.

          OPINION

          HOLLY KIRBY, JUSTICE

         Factual and Procedural Background

         In 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.

         A few 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]."

         Just 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 Davidson County.

         In 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.

         In July 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.

         In 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.

         In October 2014, the trial court conducted the scheduled hearing on Son's motion for summary judgment.[1] 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 appealed.

          The 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.

         Issues 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?

         We 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.

         This 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.[2] 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.

         Analysis

         Tenancies Under Common Law

         Tennessee 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.

         At 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.[3] 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).

         There are important differences among the three types of common-law tenancies. We summarize the differences as background for our analysis.

         A tenancy by the entirety is held exclusively by persons who are legally married. It is ancient in origin and remains firmly established in Tennessee.[4] 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]."[5] Tindell, 37 S.W. at 1106 (quoting Den, 10 N.J.L. at 45).

         When 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 336-37.

         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").

         "Tenants 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))).

         Common-Law Doctrine of Severance

         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 joint tenants).

         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 explained:

          "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 tenants.

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 its unities.

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 ...


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