Alexander v. Boyer

Barnes, J., delivered the opinion of the Court. The principal question presented by this appeal is whether or not a joint tenancy in approximately 85 acres of farm land in Frederick County had been destroyed so that the joint owners held the land by a tenancy in common rather than by a joint tenancy with the right of survivorship. ⁵¹³ The facts are not in dispute and are included in a stipulation of the parties. On February 27, 1945, Emery D. Lease, a widower (Emery), conveyed his farm in Frederick County, containing approximately 117 acres of land, together with all livestock, farming implements and personal property located on the farm to a straw man, who immediately thereafter conveyed the farm, together with all livestock, farming implements and personal property located on it to Emery B. Lease, Helen M. Boyer (Helen) and Evelyn V. Lease (Evelyn) his daughters “as joint tenants and to the survivor of them, and not as tenants in common, their heirs and assigns forever, in fee simple.” The conveyances were duly recorded. Helen, at that time was married to Mehrl T. Boyer (Mehrl) who was plaintiff below in his capacity as executor and sole devisee under Helen’s will.

Evelyn, the other daughter and one of the three joint tenants, was unmarried at that time. On May 21, 1947, Emery, widower, Helen and Mehrl, her husband, and Evelyn, unmarried, conveyed certain lots from the farm and on May 4, 1953, they conveyed away two additional parcels containing 10 acres and 7.577 acres, respectively. Thereafter they subjected portions of the remaining land to easements in favor of the United States of America, the Potomac Edison Company and the Chesapeake and Potomac Telephone Company. On February 8, 1958, they conveyed 11.44 acres of the remaining land to the State Roads Commission.

All of the money received from these transactions was deposited in the joint names of Emery, Helen and Evelyn in the local banks in joint accounts. Evelyn married Edwin M. Alexander (Edwin) on July 3, 1960. Edwin was the respondent in the lower court in his capacity as administrator of Evelyn, as her surviving husband and her only heir at law. He is the appellee in this Court.

Shortly after Evelyn’s marriage to Edwin, the joint bank accounts containing the proceeds from the real estate transactions, were withdrawn and divided equally between Emery, Helen and Evelyn. Emery died on October 9, 1961, a widower and intestate, leaving Helen and Evelyn as his only heirs at law and next of kin. The following January 8, 1962, Evelyn sold her right, title and ⁵¹⁴ interest in the items of farm equipment (26 separate items) the Holstein bull, three Holstein heifers and 21 milk cows located on the farm, “Emery Lease Farm,” to Mehrl for $3,601.50. On the same day, she executed a written lease under seal of all of her right, title and interest in the “Emery Lease Farm” and containing 98 acres of land, more or less for a term beginning January 1, 1962 and ending March 31, 1963, for a monthly rental of $100, with provisions that Mehrl, as the tenant, should pay all taxes, assessments and charges accruing during the term, keep the premises insured to the extent of the present fire policies and pay all premiums thereon, maintain the premises in the present condition and yield up the premises to Evelyn, the lessor, “at the end of the original tenancy or any renewal or renewals thereof.” The lease further stated that it was “understood and agreed between the parties hereto that the Lessor is to receive the rent of One Hundred Dollars ($100.00) per month without any deductions from any cause or nature whatsoever.” On January 1, 1963, Mehrl, the tenant, sublet his interest in the lease of January 8, 1962, to Spencer Ralph Loy and wife from that date to March 31, 1963.

Thereafter, Helen and Mehrl, her husband, and Evelyn and Edwin, her husband, leased the farm to Loy and wife for a period of one year beginning April 1, 1963, and ending March 31, 1964, and renewable thereafter until either the lessors or the lessees should terminate it by giving six months notice in writing. Mehrl collected all monthly rentals and deposited one-half of the rent in a joint account in the name of himself and his wife, Helen, and paid the remaining one-half to Evelyn. This lease was renewed and was in effect when the bill of complaint was filed in this case in the Circuit Court for Frederick County on June 21,1967. On October 18, 1963, Helen and Mehrl, her husband, and Evelyn and Edwin, her husband, conveyed two acres of land to the Eastern District of Christian and Missionary Alliance, Inc., together with an option' to purchase an additional one-half acre, this option being in effect when the bill of complaint was filed.

In the deed of October 18, 1963, it was provided that the option would expire upon the happening of any one of the following conditions: ⁵¹⁵ “(1) Failure of the optionees to exercise same in writing within 30 days after notice to them of the execution of a contract of sale by the grantors herein, or the survivor thereof, for the remainder of the whole farm of which the one-half acre lot is a part; or (2) Failure of the optionees to exercise same in writing within 30 days after notice to them by administrator or executor, as the case may be, of the estate of the last surviving joint tenant grantor herein; or (3) By notice in writing to said joint tenants, or the survivor, at any time hereafter by the optionees or either of them, that the option herein granted will not be exercised, which said notice of refusal shall be in a form permitting its recording among the Land Records of Frederick County, if necessary.” (Emphasis supplied) The selling price for this conveyance and option was divided equally between Helen and Evelyn. On February 4, 1965, Helen and Mehrl, her husband, and Evelyn and Edwin, her husband, entered into an agreement to sell the remaining 85 acres of the farm to Dr. Sol Levine, contingent upon his obtention of rezoning of the land for the erection of townhouses. Dr. Levine made a payment of $5,000 when the agreement was executed which was held by the realtors pending certain contingencies set forth in the agreement. The agreement provided that the purchase price should be $6,000 an acre, the acreage to be determined by a survey obtained at the buyer’s expense, and should be paid as follows: 29% “is to be paid to the sellers by the buyer at the time of settlement.

Buyer is to give the sellers a purchase money mortgage for the balance of said purchase price, to bear interest at the rate” of 4y2% per annum, the principal to be payable in 10 equal installments. The buyer agreed to file the application for the rezoning (R-4) promptly and to pursue the rezoning “in a reasonable and expeditious manner”, all costs being at the buyer’s expense, but the sellers agreed to sign the necessary applications as owners. The agreement then provided: “If said buyer is unable to obtain the required zoning for the entire tract, the buyer, at his option, may ⁵¹⁶ within thirty (30) days of the completion of the rezoning application, purchase the entire tract at the aforementioned Six Thousand Dollars ($6,000.00) per acre, or to declare the option contract void. It is further agreed that the deposit herein mentioned shall be forfeited by the buyer in the event that the necessary zoning applications are not promptly filed or pursued by him in a reasonably expeditious manner.

If said zoning application is promptly filed and pursued by the buyer in a reasonably expeditious manner but is not granted for apartment and Towne House uses, the said Five Thousand Dollar ($5,000.00) deposit will be returned to the purchaser.” It was further provided that if rezoning were approved and the buyer exercised his option to purchase, the sellers, as mortgagees would release land on the basis of $8,000 an acre upon certain conditions; that settlement would be 30 days from the exercise of the option or within 60 days of the granting of the rezoning “whichever shall first occur”; and, that time was of the essence of the contract. Dr. Levine elected not to purchase on March 17, 1967, and as a result of ensuing litigation, the Circuit Court for Frederick County (Equity No. 21,007) filed an opinion and an order dated October 27, 1966, determining that Dr. Levine was not entitled to a return of his $5,000 payment which, in the meantime, had been paid over by the realtors to the attorney for the sellers, and was by him, less his fee, paid over to Edwin. While Equity No. 21,007 was pending, Helen died on July 7, 1966, leaving a will naming Mehrl, her surviving husband, as executor and as sole devisee. After Helen’s death, Evelyn demanded and received from the Loys, tenants of the farm, all monthly rental until she died on May 16, 1967, intestate, leaving her surviving husband Edwin as her only heir at law.

Edwin was duly appointed as administrator of Evelyn’s estate. After Evelyn’s death, Edwin demanded and received the monthly rental of the farm from the Loys. Mehrl filed the bill of complaint in the present case on June 21, 1967, setting forth most of the above stated facts. Edwin ⁵¹⁷ was named as defendant.

Mehrl alleged that because of the facts alleged in his bill of complaint, the joint tenancy ownership of the property was terminated prior to the death of his wife Helen and that Mehrl owned a one-half interest in the land. The prayers for relief were that the Circuit Court declare, pursuant to the Uniform Declaratory Judgments Act, Code (1957), Article 31 A, the title and ownership of the parties to the farm and that the plaintiff have other and further relief. Edwin filed an answer claiming that none of the facts alleged is sufficient to change the joint tenancy to a tenancy in common and that he as heir of the last surviving joint tenant is entitled to the full and complete ownership in the farm, the rents and the net proceeds of the Levine payment. After the stipulation of facts was filed and trial briefs and arguments were presented, the Chancellor (Clapp, J.) filed an opinion indicating that, in his opinion, the joint tenancy in the personal property had been terminated by the sale of January 8, 1962, by Evelyn and that the joint tenancy in the land had been terminated by the agreement of February A, 1965 with Levine.

He signed a decree on July 11, 1968, declaring that on July 7, 1966, the land was held in equal interest by Helen and Evelyn as tenants in common and not as joint tenants, that Edwin, administrator of Evelyn’s estate, pay to Mehrl, executor of Helen’s will, $1,540.13, representing one-half the gross rental less one-half of the expenditures accounting from July 7, 1966, to the date of the decree, the amount having been agreed upon by stipulation of the parties; that Edwin, administrator of Evelyn’s estate, pay to Mehrl, executor of Helen’s will, $1,500, representing one-half of the net amount of the Levine payment; that future net profits and losses from the land be divided equally between Mehrl and Edwin and that the costs be divided equally between them. We shall affirm the Chancellor’s decree but for a different reason so far as the termination of the joint tenancy of the land is concerned. The estate of joint tenancy, with its right of survivorship or jus accrescendi, was well known at common law and during the time of feudalism, because of the vital importance of tenure, was a favored estate. Chancellor Kent, in 4 Kent’s Commen ⁵¹⁸ taries (1896, Fourteenth Ed.) 361, gave the reason for the common law rule, as follows : “The common law favored title by joint tenancy, by reason of this very right of survivorship.

Its policy was adverse to the division of tenures, because it tended to multiply the feudal services, and weaken the efficacy of that connection. [Citing Lord Chief Justice Holt in Fisher v. Wigg, 1 Salk, 391, in a note] But in Hawes v. Hawes [1 Wils. 165], Lord Hardwicke observed, that the reason for that policy had ceased with the abolition of tenures; and he thought, that even the courts of law were no longer inclined to favor them; and at any rate, they were not favored in equity, for they were a kind of estate that made no provision for posterity.” At common law it was presumed that a conveyance to two or more persons created a joint tenancy. Hannan v. Towers, 3 Har. & J. 147 (1810). This presumption was inverted by the passage by the General Assembly of Chapter 162 of the Acts of 1822, which now appears as Code (1957), Art. 50, § 9 (1968 Repl. Vol.) which provides that “No deed, devise or other instrument of writing should be construed to create an estate in joint tenancy, unless in such deed, devise or other instrument of writing it is expressly provided that the property thereby conveyed is to be held in joint tenancy.” As Judge (now Chief Judge) Hammond stated, for the Court, in Register of Wills for Montgomery County v. Madine, 242