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People v. Nogarr

Law Dictionary
CASE BRIEFS

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Property Law Keyed to Cribbet

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Bloomberg Law

Citation. 22 Ill.164 Cal.App.2d 591, 330 P.2d 858 (Ct. App. 1958)

Brief Fact Summary. The Appellant Elaine Wilson and Calvert Wilson (now deceased) owned property as joint tenants until the death of Calvert in 1955. Prior to Calvert’s death, the couple separated in July of 1954, and thereafter, without Elaine’s knowledge or consent, Calvert executed a promissory note to his parents (Respondents) for $6,440, and then delivered a mortgage to his parents on the property in question.

Synopsis of Rule of Law. In this jurisdiction the act of mortgaging property by one of the tenants in a joint tenancy is not sufficient to sever the tenancy, and the interest of the mortgagee will terminate if the mortgaging tenant dies before the non-mortgaging tenant.


Facts. The Appellant Elaine Wilson and Calvert Wilson (now deceased) owned property as joint tenants until the death of Calvert in 1955. Prior to Calvert’s death, the couple separated in July of 1954, and thereafter, without Elaine’s knowledge or consent, Calvert executed a promissory note to his parents (Respondents) for $6,440, and then delivered a mortgage to his parents on the property in question. In 1956 the People of the State of California commenced this action to condemn the property. The People, in its complaint, alleged that Elaine Wilson was the owner of the real property in question and that the parents of Calvert were the mortgagees thereof. Elaine answered the complaint and alleged that she was the owner of the property and that the Respondents had no right or interest or title to the property. The parents of Calvert alleged that they were the owners and holders of the mortgage executed by Calvert and that the mortgage should be satisfied from the proceeds of the conde
mnation award (condemnation being an action where the state gains title to real property by paying to the property owner the fair market value of the property). The fair market value was agreed to be $13,800 and that amount was paid into the court by the People. Then a trial was had to determine the rights of Elaine and the Respondents. The trial court found that the Respondents were owed $6,440 on the promissory note secured by mortgage and that that amount plus interest should be paid to Respondents from the proceeds of the condemnation out of 50% of the funds remaining with the county clerk after certain liens which were legitimately the debt of both Elaine and Calvert were satisfied. The Respondents, as a result, were to receive 50% of the money left after the satisfaction of the liens because the amount due to them was in excess of one-half the balance remaining after the other liens had been paid. The Appellant, Elaine, argued that the execution of the mortgage by Calvert did no
t terminate the joint tenancy and sever his interest from Elaine’s, but that the mortgage was a lien against his interest as a joint tenant only, and that when he died, his interest ceased to exist and the lien of the mortgage terminated. That the result would be that Elaine was entitled to the entire award exclusive of the money due to satisfy legitimate liens.

Issue. Does the execution of a mortgage by one joint tenant terminate the joint tenancy?

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