Downing v. Downing

CHASANOW, Judge. In 1948, Helen Downing (Helen) and her husband John Downing (John Sr.) bought an 88-acre farm in Carroll County, Maryland. They had two children, John Robert Downing (John Jr.) and Bonnie Lynn Downing (Bonnie). When John Sr. died, Helen became the sole owner of the family farm.

On August 7, 1972, several years after John Sr.’s death, Helen conveyed the farm to a “straw man,” 1 Stanford Hoff, “his heirs and assigns forever in fee simple.” Hoff immediately reconveyed the property “unto HELEN S. DOWNING, widow, and JOHN ROBERT DOWNING, as joint tenants, their heirs and assigns, forever in fee simple.” Language in the habendum clause was almost identical to that of the granting clause, conveying “unto the said HEL ⁴⁷¹ EN S. DOWNING and JOHN ROBERT DOWNING, as joint tenants, their heirs and assigns forever in fee simple.” Prior to the conveyances of August 7, 1972, Helen, assisted by John Jr., negotiated an oral agreement with John Myers (Myers) whereby Myers was permitted to grow and harvest crops on arable portions of the property in exchange for payments to Helen. This agreement did not entitle Myers to exclusive possession of the farm, only to raise and harvest crops on the land. The deed to Hoff is silent about this arrangement, as is the deed from Hoff to Helen and John Jr. Following the August 1972 conveyances, with John Jr.'s concurrence, Helen continued to receive all of the farm rent payments from Myers. From time to time John Jr. consulted with Myers about his cultivation methods to make sure the land was being properly cared for.

Myers continues to raise crops there to this day. Helen subsequently married Gordon Cullison. On October 31,1985, Helen and John Jr. executed a mortgage of the property in favor of the Union National Bank. The mortgage states that the property, “by Deed of Stanford Hoff, dated August 7, 1972, and recorded among the Land Records of Carroll County ... was granted and conveyed unto Helen S. Downing and John Robert Downing as joint tenants; the said Helen S. Downing being now known as Helen S. Cullison.” (Emphasis added).

Helen died on January 15, 1987. In her will, she made specific bequests to various family members, including her second husband and her descendants, but made no mention of the farm. The residue of the estate was to go half to John Jr. and half to Bonnie. 2 On December 29, 1988, ⁴⁷² Bonnie, as personal representative of her mother’s estate, filed a complaint seeking to have the August 7, 1972 deed construed as creating a tenancy in common. Under such an arrangement, the family farm would not go solely to her brother, but an undivided one-half would be placed in her mother’s estate.

John Jr. received a copy of this complaint. When he did not file an answer, Bonnie was granted an order of default. John Jr. received notice of this order. Testimony was then taken by a master to determine what relief, if any, Bonnie would be entitled to.

At the hearing before the master, John Jr. appeared with counsel, testified, and introduced evidence. The master concluded that no joint tenancy ever came into being because “[t]he chief incident of a joint tenancy is the right of survivorship. Such is not spelled out in this deed.” The master also noted that the mortgage and farming arrangement would have destroyed a joint tenancy in any event. The circuit court heard the matter on John Jr.’s exceptions to the master’s report.

The circuit court concluded that the deed created a joint tenancy but that the subsequent mortgage executed by both joint tenants severed the joint tenancy. Therefore, the court agreed with the master that the family farm is “owned by John R. Downing and the Estate of Helen S. Downing (Cullison) as tenants in common.” John Jr. appealed from this order to the Court of Special Appeals. We granted certiorari on our own motion prior to consideration by the Court of Special Appeals. In this case we must resolve two questions: (1) Is a conveyance using the language “as joint tenants, their heirs and assigns, forever in fee simple” sufficient to create a joint tenancy?

(2) If so, did either the farming agreement with Myers or the execution of a subsequent mortgage by both Helen and John Jr. sever this joint tenancy? ⁴⁷³ As a preliminary matter, Bonnie argues that John Jr., being subject to an order of default below, should not be permitted to prosecute this appeal. The record, however, reflects no objection to John Jr.’s raising the joint tenancy issue at the hearing before the master, nor did Bonnie ever object to John Jr.’s “Exceptions to Master’s Report and Recommendation” or to the circuit court hearing John Jr.’s exceptions. Maryland Rule 8-131(a) states, in part, “[ojrdinarily, the appellate court will not decide any ... issue unless it plainly appears by the record to have been raised in or decided by the trial court----” Therefore, because no objection appears on the record, this issue is not properly before this Court. Furthermore, Bonnie never sought a judgment by default as provided by Maryland Rule 2-613(e). 3 She sought only ⁴⁷⁴ an order of default, which was granted.

Subsequent to that order, and without objection, John Jr. participated in the hearings and was permitted to raise the substantive issues that are now before this Court. The only judgment entered was not a default judgment but was an order deciding the substantive issues; John Jr. certainly has the right to appeal that order. See Banegura v. Taylor, 312 Md. 609, 618 , 541 A.2d 969, 973 (1988). Any failure by John Jr. to move to strike the order of default has been waived because there was no objection to John Jr.’s raising the substantive issues in the proceedings below, and the trial court’s decision on the merits is properly before us.

Bonnie argues that no valid joint tenancy ever came into being by the deed of August 7, 1972. Because the primary dispute in the instant case is whether a joint tenancy was ever created, it is advisable to review briefly the nature of a joint tenancy. Joint tenancy means that each joint tenant owns an undivided share in the whole estate, has an equal right to possess, use, and enjoy the property, and has the right of survivorship. 2 Herbert T. Tiffany, The Law of Real Property §§ 418, 419 (Basil Jones ed., 3d ed. 1939). At common law, there were four unities necessary for the creation of a valid joint tenancy.

Under traditional common law principles, “[E]ach joint tenant had an undivided interest as an individual which was equal to the interest of every other cotenant. Since they were seised together as a fictitious unity, there was necessarily a community of interest which required their individual interests be equal in all respects. The later books recite that four unities were ⁴⁷⁵ essential to a joint tenancy, those of time, title, interest and possession. The requirement of the four unities expresses in an artificial way the basic idea that cotenants hold as a unity with a community of interest between them, since if they take as one they must take at the same time, by the same deed or feoffment, and must have interests which are identical.” Alexander v. Boyer, 253 Md. 511, 519 , 253 A.2d 359, 364 (1969) (quoting 2 Thomas A. Atkinson et al., American Law of Property, § 6.1, at 4 (A. James Casner ed., 1952)).

For the purposes of this case, the crucial distinction between a joint tenancy and a tenancy in common is the right of survivorship identified with a joint tenancy. 4A Powell on Real Property ¶ 615[1] (Castleman rev. 1990). Therefore, if we determine that a joint tenancy was created, the family farm passes to John Jr. as surviving joint tenant. If we find that a joint tenancy was not created, the deed establishes merely a tenancy in common and Helen’s interest in the family farm will become part of her estate. “At common law it was presumed that a conveyance to two or more persons created a joint tenancy.” Alexander v. Boyer, 253 Md. at 518 , 253 A.2d at 363 . Chapter 162 of the Acts of 1822 reversed the common law and declared joint tenancy to be disfavored in Maryland with the following words: “That no deed, devise or other instrument of writing which may hereafter be made or executed, shall 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 conveyed by such deed, devise, or other instrument of writing, is to be held in joint tenancy.” Chapter 162’s embodiment in effect at the time of the August 7, 1972 deed was Maryland Code (1957, 1972 Repl.

Vol.), Article 50, § 9, which provided, “No deed, devise or other instrument of writing shall be construed to create an estate in joint tenancy, unless in such deed, devise or other ⁴⁷⁶ instrument of writing it is expressly provided that the property hereby conveyed is to be held in joint tenancy.” 4 Bonnie tells us that she has found no Maryland decision that “flatly states that the term, ‘joint tenants/ standing alone, is sufficient to overcome the disfavor with which joint tenancies are viewed in Maryland.” This Court has held that in the case of a joint tenancy, it must be so clearly expressed as to leave no doubt about the parties’ intention. Register of Wills v. Madine, 242 Md. 437, 444 , 219 A.2d 245, 249 (1966), quoting Hammond v. Dugan, 166 Md. 402, 409 , 170 A. 757, 760 (1934). However, we believe that when a deed uses the words “joint tenants,” as does the instrument in the instant case, this language can be sufficient to establish that the property granted is to be held in joint tenancy. 5 ⁴⁷⁷ In McManus v. Summers, 290 Md. 408 , 430 A.2d 80 (1981), we held that although joint tenancies are disfavored, a clear manifestation of intent to create a joint tenancy will be effectuated. In McManus , Dollie Collins went to Texas to procure a divorce, later found to be invalid.

Her husband, O. Thaxter Smith, believing the divorce to be valid, married Mary Smith. They subsequently purchased real estate in Montgomery County. “The deed referred to the ‘parties of the second part’ as ‘0. THAXTER SMITH and MARY R. SMITH, his wife____’ The land in question was conveyed ‘unto the said parties of the second part, in fee simple, as TENANTS BY THE ENTIRETY....’” Id. at 409 , 430 A.2d at 81 (footnote omitted). Upon the husband’s death, his children by the first marriage argued that because the subsequent marriage was invalid, this property was owned as tenants in common.

We reasoned that “ ‘a tenancy by the entirety cannot be established unless the grantees are legally married.’ ... It is true that under the predecessor of [Real Property Article] § 2-117 joint