Brief Fact Summary. Plaintiff Dorothy Jones and Defendant James Green purchased property “as joint tenants with full rights of survivorship and not as tenants in common.” Thereafter, Plaintiff brought a suit to partition the property. Defendant moved for a summary judgment arguing that the property conveyed to unmarried individuals as joint tenants with full right of survivorship and not as tenants in common cannot be partitioned under Michigan law.
Synopsis of Rule of Law. When property is conveyed as a joint tenancy with right of survivorship, one party may not deprive another of his right to survivorship and a partition may not be had.
In Jones v. Green et al. it is held that a bill in equity will not lie on behalf of judgment creditors to subject real property of their debtor, held by a third party upon a secret trust for him, to the satisfaction of their judgment until a fruitless attempt has been made for its collection by execution at law, and it is said.View Full Point of Law
Issue. May the Plaintiff have the court order partition of the property held in joint tenancy with right of survivorship?
Held. No. Reversed. [The trial court should have granted Defendant’s motion for summary judgment.]
The Court begins with the general rule that all lands held jointly are subject to partition. However, the Court states that under the precedent in this jurisdiction, the general rule is not always applied to joint tenancies.
In the case of Ames v. Cheyne, 287 N.W. 439 (Mich. 1939), the court announced a deviation from the general rule allowing partition of lands jointly held. In that case the court held that when the land is conveyed to the parties as “joint tenants and not as tenants in common, and to the survivor thereof” that a party of the joint tenancy may not deprive any other party of his right to survivorship and that partition could not be granted.
The Court quotes another case which construes the rule from Ames to the effect that the intent of the parties to a conveyance which stated that the property was to be held by the parties as joint tenants with right of survivorship was to create joint life estates followed by a contingent remainder in fee to the survivor, which remainder is indestructible by the unilateral act of one of the tenants. In that case partition is denied because the partition would deprive the non-petitioning party of the right of survivorship.
The Court also considered the effect of a statute would create a different holding than the cases the Court cited. However, the Court quotes a comment by the legislative committee which drafted the statute and finds that the comment is not persuasive. The Court states that it will follow the rule of the cases and that the statute is not controlling in this case because the recently enacted statute contains substantially the same language as the statute in effect when the prior cases were decided. The Court holds that the Plaintiff may not have partition.
Discussion. Do the words “with right of survivorship” merely explain an incident to joint tenancy or create a contract of a contingent remainder in the parties, subject to their survival? This case would be decided differently in other jurisdictions. In other cases the words “with right of survivorship” do not prevent one of the parties from alienating their portion of the interest.