Seitz v. Seitz , 11 App. D.C. 358 ( 1897 )

Mr. Justice Morris

delivered the opinion of the Court:

It is with great regret that we find ourselves constrained to reach, a different conclusion in this case from that reached by the learned justice who rendered the decree in the court below. We fully recognize the fact that, however the case may have been in the past, neither in our own country nor in England at this day is the construction favored that would make a joint tenancy rather than a tenancy in common. It has been said that courts of equity are even astute to find reasons for the construction that from any given instrument of writing would raise a tenancy in common, rather than a joint tenancy. And it is undoubtedly true, that, in the vast majority of cases substantial justice is done and effect given to the true intention of the parties by such construction.

At the same time, we are compelled also to recognize the fact that it is an inflexible and inexorable rule of the common law, repeatedly declared to be in force in the Distript of Columbia, and become an absolute rule of property, which could not be disregarded without disturbing a vast number of titles and unsettling the whole law of real estate, that a conveyance of land to two or more persons, without any sufficient indication of intention in the instrument of conveyance that the grantees are to hold in severalty, is to be construed as a joint tenancy,, and not as a tenancy in common, whatever may have been the true intention of the parties in that regard. We know that this rule of the common law has been changed almost everywhere else by statute ; but the Congress of the United States has not yet thought proper to^ change it in the District of Columbia, notwithstanding that its attention has been called to the subject; and we are bound by the rule as it stands.

We are not entirely certain, however, that in applying the rule in the present case, we are frustrating the intention of the parties. There are many cases of family settlement, and for all that we know to the contrary this may be one of them, where the idea of survivorship and the retention of property in the hands of those immediately concerned, is the dominant idea, and the application of the law of joint tenancy works no wrong to their purpose. But, however this may be, the law is inexorable wherever it applies, even though its results should be to exclude the claims of helpless infancy; and the only question for us here to determine is whether it applies in this case.

Extraneous considerations are not to be regarded. The great mass of the testimony in the case is probably inadmissible. The terms of the written instrument can not be varied or explained by oral evidence; and there is no latent ambiguity to be removed by a consideration of extraneous circumstances. Indeed, the testimony, such as it is, does not serve to throw light upon the matter of controversy. The court below disregarded it; and it was practically disregarded in the argument before us. We are remitted to the deed itself exclusively for its own construction.

Beyond all question, the granting clause in the deed, if taken alone, and without reference to the previous recitals or to the subsequent habendum and tenendum clause, creates a joint tenancy, and nothing else. The grant is “ unto the said parties of the third part, their heirs and assigns,” words which from time immemorial have always and invariably, in the absence of statutory provisions to the contrary, been construed as creating a joint tenancy. This much, of course, is not controverted by any of the parties to the controversy.

But it is claimed that by the previous recitals, by an expression in the habendum and tenendum clause indicating severalty, and by the fact that the conveyance itself operates as a severance, in favor of the grantor, of the joint interest declared by the deed to have previously existed in him in trust, and that no reason appears thereafter for the continuance of a joint interest in the other parties, enough appears to warrant a construction of the instrument as creating a tenancy in common. The learned justice, who rendered the decree in the court below, bases his conclusion upon the habendum and tenendum clause and finds nothing in the other considerations that would justify a departure from the legal effect of the granting clause.

The recital of the deed, from which it is sought to' infer a common interest of the grantees in severalty, is that in which the grantor states that he, “ in making the said purchase, was acting, not for himself alone, but also for his brothers, Charles Leo Seitz and John F. Seitz, from whose labors jointly with his own the purchase money of the said property had been derived.” But plainly no such inference is tenable. The recital amounts to no more than a statement that the purchase money had been paid jointly by all three parties, and this is only what happens, or what is presumed, in all cases of joint tenancy, as well as in all cases of tenancies in common, where no inequalities otherwise appear. The presumption is of equal and joint payment in both cases; and no inference either way can be drawn from any such payment. There are cases where inequalities of payment, especially where such inequality appears on the face of the deed itself, has been held to convert that which otherwise would be construed as a joint tenancy into a tenancy in common; and this construction, of course, is based upon obvious reasons of justice. But no such reasons exist in the case of equal contributions by all of the grantees; for joint tenancy, as well as tenancy in common, gives each an equal right in the estate, with equal right of survivorship and equal right of severance by the parties at will. To hold that a showing of equal contribution to the purchase money would establish of itself a tenancy in common, and not a joint tenancy, would destroy all joint tenancy, except where it was expressly declared; and would, therefore, contravene the well-established rule of law. And to this effect undoubtedly are all the authorities on the subject, which are unaffected by statute. Lake v. Gibson, 1 Leading Cases in Equity, p. 177; 1 Sugden on Vendors and Purchasers, 11th Ed., p. 902; Aveling v. Knipe, 19 Ves. 441; 11 Amer. & Eng. Encyclopedia of Law, Art. Joint Tenancy, p. 1059. If the grantees in this case had been partners, and it appeared that the purchase money was derived from partnership assets, there would be reason to hold that a tenancy in common, and not a joint tenancy, was intended. But there is no claim of the existence of any such partnership. The only partnership shown to have existed was between John F. Seitz and his father, George Seitz; and if the purchase money in the case did not come from George Seitz, who howrever does not make claim to it, it is quite probable that it came from the partnership of George Seitz and Son. But this fact, if fact it be, does not at all aid the case of the appellees.

Greatest reliance is placed by the appellees upon the indication which they claim to' be afforded by the use of the word sole in the habendum and tenendum clause. The argument is that the word means several; and that, when it was provided that the grantees should hold the property granted “to their sole use, benefit and behoof forever,” the terms used were the equivalent of “ their several use, benefit, and behoof forever.” But we can not acquiesce in the soundness of this argument. The word sole does not mean several. No authority, legal or philological, is or can be cited where it has any such meaning attributed to it. Its signification is well recognized to be the same as only or exclusively; and the purpose of the clause, so far as any purpose can be attributed to such unnecessary verbiage, is to provide that the grantee or grantees shall hold the property granted exclusive of all the rest of the world. It would be a most strained and unnatural conclusion, and one which in all probability would greatly disturb and unsettle titles, if such words were to be construed as determining the respective rights of the grantees as between themselves.

As wras said by this court, through the Chief Justice, in the case of Rathbone v. Hamilton, 4 App. D. C. 475, 489, the words quoted are no more than “ a common formula found transcribed in many deeds,” and in that case they were held not to be intended to create a separate estate in a married woman.

To the same effect is the case of Lippincott v. Mitchell, 94 U. S. 767, 771, where the same or similar words were construed. There the controversy was also, as in the case of Rathbone v. Hamilton, whether a deed had created a separate statutory estate in a married woman, and the terms relied upon as creating such estate, and which occurred in thehabendum and tenendum clause, were the following: “to the-sole and proper use, benefit, and behoof of the said Nannie C. Mitchell, her heirs and assigns forever.” Construing these words and the effect of the deed, the Supreme Court of.' the United States said:

“If it were intended by this deed to give the wife a separate estate, it is remarkable that in the mass of redundant-verbiage employed no words clearly apt for that purpose are-to be found. It is remarkable, if such an intent existed, that the phrase ‘for her separate use/ or ‘for her exclusive use/' or ‘free from the control of her present or any future husband/ or some equivalent for one of them, was not inserted.. The omission can only be accounted for upon the hypothesis that the idea of separate estate was not in the mind of either of the parties, and that hence no instruction was given upon the subject to the draftsman of the deed. There is-nothing in the record to warrant the belief that the purchase and conveyance were not intended to be such a transaction in the ordinary way, without securing to the grantee any special rights touching the property, or any right other than-the ownership in fee simple. The only part of the deed which gives a shadow- of support to the proposition of the-appellants is the language of the habendum. The same language is to be found in many precedents in books of forms,, where certainly there was no purpose to create a separate estate. ”

And the court holds that the word sole in these forms is the equivalent of the word only in the older English precedents.

This seems to us to be conclusive of the present case. The draftsman of the deed now before us for construction was evidently somewhat familiar with the legal forms of expression and the general requirements of a deed. This is clearly manifested by the general phraseology of the deed and by the evidence of the recitals. If he was utterly ignorant of the difference between a tenancy in common and a joint tenancy, which we would be compelled to assume by the argument of counsel for the appellees, it is strange that such ignorance was not otherwise manifested. The law upon the subject was well settled and uniform; and it was not unknown even to the class of laymen in the District of Columbia, to whom recourse was often had fot the preparation of deeds, as well as for their acknowledgment. Adapting to the present case the language of the Supreme Court of the United States in the case above cited of Lippincotfv. Mitchell, it is very remarkable that, in the mass of redundant verbiage employed in this case, no words clearly apt for the creation of a tenancy in common are to be found, if it was the intention to create such a tenancy; and the omission can only be accounted, for upon the hypothesis that‘the idea of a tenancy in corhmon was not in the mind of either of the parties, and therefore no instruction was given on the subject. The probabilities, indeed, are that nothing was said or thought by any of the parties to the transaction with reference either to joint tenancy or tenancy in common; bift this leaves them to the application of the ordinary rules of the common law as to the construction of the instrument which they executed. But, as if corroborating this view of the case, it is to be noted that the draftsman of the deed, in providing for the separate estate of the life tenant, Mary Elizabeth Seitz, a married woman, and the wife of George Seitz, was very careful to use apt words—“for her sole and separate use, and for that purpose only.”

The cases of Galbraith v. Galbraith, 3 S. &. R. 391, and Bambaugh v. Bambaugh, 11 S. & R. 191, are cited as holding a contrary view to that herein expressed. But in the first of those cases, the grant was “to them (the grantees), or any of them, their or any of their heirs,” and the court construed the word any, which otherwise perhaps would have been absurd and meaningless, to be the equivalent of the word each, thereby creating a tenancy in common; and in the second, the case of Bambaugh v. Bambaugh, the habmdui#, clause contained the words, “ to their and each of their heirs and assigns,” which the court construed as overcoming the result of the technical words in the premises which would have created a joint tenancy. It is evident that these words could have had no force or effect except upon the implication of a tenancy in common. We are unable to see that they resemble the present case in any respect.

The case of Barribeau v. Brandt, 17 How. 43, is also cited in "the same connection. But the deed construed in that case does not appear in the report of the case; and a careful reading of the case would indicate that the joint estate, even if such it was, had been severed by the action of the joint tenants themselves. This case can not be regarded as an authority against the position which we have taken.

It is unnecessary to discuss at much length the third consideration heretofore indicated, namely, the fact that the original joint interest recited by the deed to have been in the grantor, Joseph Franklin Seitz, and his two brothers, John F. Seitz and Charles Leo Seitz, was severed, as to the grantor on the one hand and the grantees on the other, by the very execution of the deed, and no reason appears why there should not have been a severance between the grantees also. The views of the párties are not disclosed to us except by the deed itself; and there is no inconsistency, legal or equitable, in the severance of his interest by one brother and the continuance of the others in a joint tenancy. Even after the execution of the deed it was competent for the two grantees to sever their interests, if they thought proper so to do. If their failure so to do was in consequence of their ignorance of their respective rights under the deed, that is a consideration of which we can not here take cognizance.

Entertaining the view of the law which we have here expressed, we are compelled to reverse the decree of the court below, with costs-, and to remand the cause to that court,¡with directions to dismiss the bill of complaint.