Sathoff v. Sutterer

869 N.E.2d 354, 373 Ill. App. 3d 795
CourtAppellate Court of Illinois
DecidedMay 8, 2007
Docket5-06-0257
StatusPublished
Cited by8 cases

This text of 869 N.E.2d 354 (Sathoff v. Sutterer) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sathoff v. Sutterer, 869 N.E.2d 354, 373 Ill. App. 3d 795 (Ill. Ct. App. 2007).

Opinion

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, Wayne 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 Melba, 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.

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 plaintiffs 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 plaintiffs 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 survivor-ship, 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 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 survivor-ship. 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). WTaere one of three joint tenants conveys his interest in real estate to one of his co-tenants, 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. 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 lb of the Joint Tenancy Act (Act) (765 ILCS 1005/lb (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 lb 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.

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Cite This Page — Counsel Stack

Bluebook (online)
869 N.E.2d 354, 373 Ill. App. 3d 795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sathoff-v-sutterer-illappct-2007.