Sathoff v. Sutterer ( 2007 )

NO. 5-06-0257
N O T IC E
Decision filed 05/08/07. The text of
IN THE
this dec ision m ay b e changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
P e t i ti o n for Re hea ring or the
disposition of the same.
FIFTH DISTRICT
________________________________________________________________________
ROGER SATHOFF, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Monroe County.
)
v. ) No. 05-CH-22
)
WAYNE SUTTERER, Executor of the )
Estate of Melba Busse, Deceased, and )
Unknown Owners, ) Honorable
) Dennis B. Doyle,
Defendants-Appellees. ) Judge, presiding.
______________________________________________________________________
JUSTICE WEXSTTEN delivered the opinion of the court:
The plaintiff, Roger Sathoff, filed an action to quiet title and for a declaratory
judgment in the circuit court of Monroe County. The circuit court granted the motion to
dismiss filed by the defendant, W ayne Sutterer, the executor of Melba Busse's estate. On
appeal, the plaintiff argues that the circuit court misconstrued the law regarding joint tenancy
and misapprehended the facts in the case. We affirm.
FACTS
The facts in the present action are undisputed. On June 5, 1981, Theodore Busse
conveyed real estate to Paul Busse and Melba Busse (husband and wife) and the plaintiff as
joint tenants with the right of survivorship, and the deed was recorded on June 9, 1981.
Pursuant to a deed dated February 29, 1996, Paul and Melba transferred their interest in the
real estate from Paul and M elba, as joint tenants, grantors, to Paul and Melba, as joint
tenants, grantees, and this deed was recorded on March 12, 1996. Paul predeceased Melba,
who predeceased the plaintiff.
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On May 10, 2005, the plaintiff filed this action to quiet title and for a declaratory
judgment. In his complaint, the plaintiff alleged that the 1996 deed was a cloud on his title
to the real estate and was null and void. The plaintiff alleged that the 1996 deed did not
destroy the joint tenancy subsisting in the plaintiff, Paul, and Melba and that, because Paul
and Melba were deceased, he acquired the real estate by operation of law as the sole
surviving joint tenant.
On November 4, 2005, Sutterer filed a motion to dismiss the plaintiff's complaint. On
February 14, 2006, the circuit court held that by executing the 1996 deed, Paul and Melba
destroyed the joint tenancy between Paul, Melba, and the plaintiff. Accordingly, the circuit
court granted the motion to dismiss and entered a judgment in favor of the defendant.
Thereafter, the circuit court denied the plaintiff's motion to reconsider, and the plaintiff filed
a timely notice of appeal.
ANALYSIS
The plaintiff argues that Paul and Melba's deed executed in 1996, conveying from
Paul and Melba, as joint tenants, to Paul and Melba, as joint tenants, was void and did not
sever their joint tenancy with the plaintiff. The plaintiff argues that, as a result, when Paul
and Melba predeceased him, he became the only surviving joint tenant and the sole owner
of the property. See Harms v. Sprague, 105 Ill. 2d 215, 224 (1984) (an intrinsic feature of
joint tenancy is the right of survivorship, which entitles the last surviving tenant to take the
entire estate).
At common law, joint tenant grantees took title as though they together constituted
one person. Minonk State Bank v. Grassman, 103 Ill. App. 3d 1106, 1108 (1982), aff'd, 95
Ill. 2d 392 (1983) (adopting the rationale of the appellate court). "Since all were seized as
a fictitious entity, four classic unities developed which, albeit artificially, demonstrated their
community of interest which required that individual interests be equal in all respects. (2
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American Law of Property, §6.1, at 4 (1952).)" Minonk State Bank, 103 Ill. App. 3d at 1108.
The common law unities were time, title, interest, and possession. Minonk State Bank, 103
Ill. App. 3d at 1108. "In essence, the common law joint tenancy required that the several
tenants have one and the same interests accruing by one and the same conveyance,
commencing at the same time and held by one and the same undivided possession." Minonk
State Bank, 103 Ill. App. 3d at 1108.
An indisputable right of each joint tenant is the power to convey his or her separate
estate without the knowledge or consent of the other joint tenant and to thereby sever the
joint tenancy, transforming it into a tenancy in common and extinguishing the right of
survivorship. In re Estate of Vogel, 291 Ill. App. 3d 1044, 1047 (1997); Minonk State Bank,
103 Ill. App. 3d at 1110. By conveying his or her interest in the joint property to a third
party, a joint tenant destroys the unities of title and interest, which are fundamental to the
perpetuation of the joint tenancy. In re Estate of Vogel, 291 Ill. App. 3d at 1047; In re Estate
of Martinek, 140 Ill. App. 3d 621, 629 (1986). Once the unities of title and interest are
destroyed, the joint tenancy is severed, the right of survivorship is extinguished, and the
remaining tenants hold the property as tenants in common with the third party. In re Estate
of Vogel, 291 Ill. App. 3d at 1047; In re Estate of Martinek, 140 Ill. App. 3d at 629.
Where there are three joint tenants and one conveys his interest to a third party, the
joint tenancy is severed with respect to the part conveyed; the third-party grantee becomes
a tenant in common with the other two joint tenants, and the other two joint tenants hold the
remaining two-thirds as joint tenants with the right of survivorship therein. Jackson v.
O'Connell, 23 Ill. 2d 52, 56 (1961). Where one of three joint tenants conveys his interest in
real estate to one of his cotenants, the cotenant grantee holds the share conveyed as a tenant
in common, taking it at a different time and by a different title, while his original share is
held with the remaining cotenants in joint tenancy, the unity continuing to that extent.
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Jackson, 23 Ill. 2d at 57.
"At common law, one could not create a joint tenancy in himself and another by a
direct conveyance. It was necessary for joint tenants to acquire their interests at the same
time (unity of time) and by the same conveyancing instrument (unity of title)." Riddle v.
Harmon, 102 Cal. App. 3d 524, 527, 162 Cal. Rptr. 530, 532 (1980). "So, in order to create
a valid joint tenancy where one of the proposed joint tenants already owned an interest in the
property, it was first necessary to convey the property to a disinterested third person, a
'strawman,' who then conveyed the title to the ultimate grantees as joint tenants." Riddle, 102
Cal. App. 3d at 527, 162 Cal. Rptr. at 532.
However, section 1b of the Joint Tenancy Act (Act) (765 ILCS 1005/1b (West 2004))
changes the common law with respect to the four unities by relaxing the requirements and
providing that an estate with all the effects of a common law joint tenancy can be created
through a conveyance from the grantor directly to himself as a grantee, without the
intervention of a third party. Frey v. Wubbena, 26 Ill. 2d 62, 66 (1962). Section 1b of the
Act provides, in pertinent part:
"Whenever a grant or conveyance of lands, tenements, or hereditaments shall
be made where the instrument of grant or conveyance does not create an estate in
tenancy by the entirety *** but declares that the estate created be not in tenancy in
common but with right of survivorship, or where such instrument of grant or
conveyance does not create an estate in tenancy by the entirety *** but declares that
the estate created be not in tenancy in common but in joint tenancy, the estate so
created shall be an estate with right of survivorship notwithstanding the fact that the
grantor is or the grantors are also named as a grantee or as grantees in said instrument
of grant or conveyance. Said estate with right of survivorship, so created, shall have
all of the effects of a common law joint tenancy estate." 765 ILCS 1005/1b (West
4
2004).
The courts are to adopt a more liberal and practical view of these common
transactions in light of the public policy change. Frey, 26 Ill. 2d at 69-70 ("with respect to
creation of joint tenancies in intangible personal property ***, *** compliance with the
appropriate statutory requirements dispenses with the necessity of applying common-law
principles governing creation of joint tenancies"); see also Minonk State Bank, 95 Ill. 2d at
396 ("[w]hatever problem a conveyance to oneself presented to the common law feoffment
ceremony, such a conveyance presents no problem to our present system of conveyancing").
The plaintiff argues that, pursuant to the language of the Act, the original joint tenant
(the grantor) may be named as a grantee but that he may not be named as the grantee, that
the Act therefore required Paul and Melba, as two of the three joint tenants, to convey to each
self and another (someone in addition to the original joint tenant) to sever the original joint
tenancy and create a new one, and that Paul and Melba did not sever the original joint
tenancy or create a new one by conveying only to themselves as joint tenants. The plaintiff
argues that a mere paper transfer of title from two joint tenants to the same two joint tenants
cannot be construed as a conveyance sufficient to destroy the original joint tenancy.
Paul and Melba could have accomplished their objective–the termination of the joint
tenancy with the plaintiff and the creation of a joint tenancy between Paul and Melba–by one
of a variety of circuitous processes. See Riddle, 102 Cal. App. 3d at 531, 162 Cal. Rptr. at
534. Paul and Melba could have severed their joint tenancy with the plaintiff by transferring
their interests to a "strawman" who, in turn, could have conveyed the two-thirds undivided
interest to Paul and Melba as joint tenants with the right of survivorship. Common sense, as
well as legal efficiency, dictates that Paul and Melba should have been able to accomplish
directly what they could otherwise achieve indirectly by the use of elaborate legal fictions.
See 765 ILCS 1005/1b (West 2004); Minonk State Bank, 103 Ill. App. 3d at 1112; Riddle,
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102 Cal. App. 3d at 530, 162 Cal. Rptr. at 534. After Paul and Melba's 1996 conveyance
from themselves as joint tenants, grantors, to themselves as joint tenants, grantees, the Busses
and the plaintiff no longer had one and the same interests, accruing by one and the same
conveyance, commencing at the same time. See Minonk State Bank, 103 Ill. App. 3d at 1108.
Instead, Paul and M elba's conveyance severed the joint tenancy between Paul, Melba, and
the plaintiff with respect to the undivided two-thirds interest so conveyed. See Jackson, 23
Ill. 2d at 53 (the conveyance by one of three joint tenants of real estate to another joint tenant
severed the joint tenancy with respect to the undivided one-third interest so conveyed). Paul
and Melba held the undivided two-thirds interest as joint tenants with the right of
survivorship, and the plaintiff became a tenant in common. See Minonk State Bank, 95 Ill.
2d at 396 (the unilateral attempt by the joint tenant to terminate the joint tenancy by
conveying her interest from herself–the grantor–as a joint tenant to herself–the grantee–as
a tenant in common effectively severed the joint tenancy and established a tenancy in
common between herself and the remaining tenants).
Recognizing Paul and Melba's clear intention to simultaneously sever the joint tenancy
with the plaintiff and create a new joint tenancy between themselves, the plaintiff argues that
Paul should have conveyed his undivided one-third interest to Paul and Melba as joint tenants
and that Melba should have conveyed her undivided one-third interest to Paul and Melba as
joint tenants. While the plaintiff's suggested language might have unequivocally effected
Paul and M elba's intention, we decline to allow form to triumph over substance by holding
that this was the exclusive means to effectuate their intent. See Minonk State Bank, 103 Ill.
App. 3d at 1111 ("it is obvious that courts have been inclined to allow severance [of joint
tenancies] in any variety of ways once intent to sever has been demonstrated"). Instead, we
find that Paul and Melba's conveyance in the present case sufficiently severed the joint
tenancy between Paul, Melba, and the plaintiff, created a joint tenancy between Paul and
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Melba regarding the undivided two-thirds interest, and rendered the plaintiff a tenant in
common. See Minonk State Bank, 103 Ill. App. 3d at 1112 ("[a]llowing one party to destroy
the joint tenancy by executing a deed from himself to himself merely dispenses with an
outmoded charade which is of dubious legal and practical significance"); see also Klouda v.
Pechousek, 414 Ill. 75, 85 (1953) ("an interpretation which will give the deed force will be
adopted in preference to one which will make it of no effect").
CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court of Monroe
County.
Affirmed.
WELCH, P.J., and SPOMER, J., concur.
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NO. 5-06-0257
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
ROGER SATHOFF, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Monroe County.
)
v. ) No. 05-CH-22
)
WAYNE SUTTERER, Executor of the )
Estate of Melba Busse, Deceased, and )
Unknown Owners, ) Honorable
) Dennis B. Doyle,
Defendants-Appellees. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: May 8, 2007
___________________________________________________________________________________
Justices: Honorable James M . Wexstten, J.
Honorable Thomas M. Welch, P.J., and
Honorable Stephen L. Spomer, J.,
Concur
___________________________________________________________________________________
Attorney Jay M. Huetsch, Adams & Huetsch, 101 East Mill Street, P.O. Box 132, Waterloo,
for IL 62298
Appellant
___________________________________________________________________________________
Attorney Arlie E. Traughber, Traughber & Morris, Ltd., 217 South Main Street, P.O. Box
for 587, Columbia, IL 62236
Appellees
___________________________________________________________________________________