Holbrook v. Holbrook
403 P.2d 12, 1965 Ore. LEXIS 539, 240 Or. 567 (1965)
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Rule of Law:
ORS 93.180 abolishes common law joint tenancy in Oregon, meaning that while a right of survivorship can still be created in co-grantees, the resulting interest is not subject to severance by one of the co-grantees.
Facts:
- Bertha Clyde Holbrook and William H. Holbrook, while married, entered into a property settlement agreement in contemplation of divorce concerning land they owned.
- The agreement stipulated that William and Bertha would become "joint tenants with right of survivorship" in the property, to be accomplished by deeding the property to Eleanor L. Anderson, who would then convey it back to them as "joint tenants and not as tenants in common or as tenants by the entirety, but with right of survivorship."
- The agreement further provided that William would be entitled to all rents and profits, maintain the property, pay taxes, and could make a bona fide sale during his lifetime, with Bertha receiving half the net proceeds if sold.
- On October 22, 1958, William and Bertha executed a quitclaim deed to Eleanor L. Anderson.
- Two months after the deed to Anderson, William and Bertha were divorced.
- In January following their divorce, Eleanor L. Anderson quit-claimed the property to William and Bertha, explicitly describing them "as joint tenants with right of survivorship and not as tenants in common."
- On January 8, 1963, William conveyed an undivided one-half interest in the land to his nephew, James W. Holbrook.
- William H. Holbrook died on November 3, 1963.
Procedural Posture:
- Bertha Clyde Holbrook (Plaintiff) filed a suit for a declaratory decree in the trial court (court of first instance), seeking to be declared the sole owner of the disputed land.
- The trial court entered a decree in favor of Bertha Clyde Holbrook.
- James W. Holbrook (Defendant) appealed the trial court's decree to the Supreme Court of Oregon.
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Issue:
Does a conveyance creating an estate "as joint tenants with right of survivorship and not as tenants in common" create a common law joint tenancy in Oregon that can be severed by one of the co-grantees?
Opinions:
Majority - O’Connell, J.
No, a conveyance creating an estate "as joint tenants with right of survivorship and not as tenants in common" does not create a common law joint tenancy in Oregon that can be severed by one of the co-grantees. The court affirmed the trial court's decree, holding that ORS 93.180 abolishes common law joint tenancy in Oregon. While a right of survivorship can be created in co-grantees, this interest, unlike a common law joint tenancy, cannot be destroyed by severance. Citing Halleck v. Halleck et al, the court found no essential difference between the language used in the deed in this case and the language construed in Halleck. The court interpreted the language "as joint tenants with right of survivorship and not as tenants in common" as creating concurrent estates for life with contingent remainders in the life tenants, the remainder to vest in the survivor, which effectively creates the equivalent of a common law joint tenancy except for the power of severance. The court explicitly stated that the 1953 revision of the Oregon Statutes did not remove the prohibition against common law joint tenancy, as the revised section retained the language "joint tenancy is abolished," confirming its assumption in Halleck.
Analysis:
This case solidifies the principle established in Halleck v. Halleck et al that common law joint tenancy, with its inherent right of severance, does not exist in Oregon due to ORS 93.180. It clarifies that while parties can create a right of survivorship, this interest is fundamentally different from a common law joint tenancy because it is non-severable. This means that parties in Oregon who intend to create a survivorship interest must understand that neither co-owner can unilaterally destroy that right through conveyance, ensuring the property passes entirely to the survivor. The decision emphasizes the legislature's role in defining property interests and highlights a potential need for legislative clarification regarding concurrent ownership forms in the state, given the court's acknowledgment that there seems to be no reason to forbid the common law form of joint tenancy.
