Daily Development for Wednesday, December 8, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

Thanks to DIRTer John Steel in Maryland for this one

DEEDS; CONSTRUCTION; AMBIGUITY: Deed that grants joint tenancy in granting clause and tenancy in common in habendum clause is construed as a tenancy in common deed dur to statutory presumption against joint tenancies, and deed is not ambiguous, so that extrinsic evidence will be excluded.

Kipp v. Chip's Estate, 732 A.2d 127 (Vt. 1999)

The court noted that Vermont statutes, a joint tenancy is permitted, but there is a constructional preference for tenancies in common. The court indicated that only when the intent of the grantor is quite clear will it construe a deed as a joint tenancy. Here, the grantor, in the granting clause, granted property in joint tenancy to named grantees, "their heirs and assigns forever." The court concluded that the addition of this phrase referring to heirs and assigns indicated an ambiguity in the intent of the grantor that justified the court in rejecting the notion that the grantor intended a joint tenancy.

The court also more or less completely rejected the common law presumption favoring the granting clause over the habendum clause when the two are inconsistent. It indicated that the purpose of the courts ought to be to ascertain the true intent of the grantor based upon the language of the entire instrument, and not to grant preference to language based upon distinctions that are essentially matters of capitalization and punctuation.

Having stated that it would seek to ascertain the true intent of the grantor, however, the court rejected the assertion that the deed was ambiguous and that extrinsic evidence ought to be admitted. The party seeking the joint tenancy instruction offered the testimony of the lawyer who drafted the deed and of herself, one of the grantees, but the court indicated that the deed was not so ambiguous as to justify the admission of such evidence. It cited a case that held that "the trial court has broad discretion to exclude marginally relevant evidence that is remote, tends to confuse the issues or causes a waste of time." Further, the court pointed out that to admit such evidence here would be to reject the written expression of the intention of the grantor, now deceased.

Comment 1: The editor has strained to find some justification for this opinion in light of the statutory preference for tenancies in common, but concludes that there is no basis for taking this preference so far as to exclude clearly useful evidence in evaluating the meaning of an obviously ambiguous deed. After the evidence has been taken, if the court still concludes that the intent of the grantor is unclear, the statutory presumption can be invoked, but surely if the legislature intended that joint tenancies could be created, then it must have intended that courts do their best to ascertain the grantor's true intent.

Comment 2: It is indeed ironic that the court rejects the presumption in favor of the granting clause because it indicates that such preference may lead to an interpretation contrary to that intended by the grantor, and then the court invokes another presumption to ignore evidence of the grantor's intent in this case. The editor agrees that the four corners of the deed ought to control, and that the distinction between granting and habendum clauses is not always clear, and therefore can be ignored in most cases, but such a policy ought to be invoked in support of an effort to find true intent, not to simply visit another misapplied presumption.

Comment 3: The court's suggestion that the term "and their heirs and assigns forever" renders the language creating a joint tenancy ambiguous is very dangerous precedent. This language could be used to defeat a joint tenancy deed even when there is no ambiguity in the habendum a result that is clearly inappropriate in a state that permits joint tenancies. The language "and their heirs and assigns forever" is obviously an attempt to identify a fee simple estate and does not indicate that the grantor intended that the heirs or assigns of either of the individual joint tenants take an interest. This lesson is taught in the first few weeks of law school, while the Vermont court's law clerks must have been sleeping. Or perhaps they attended a school that views understanding the basic language of conveyancing too mundane a subject to be taught.

Comment 4: The editor is no fan of joint tenancies, and recommends against their use whenever he can. But the fact is that people often intend to create survivorship estates in interfamily wealth transactions, and the joint tenancy is a popular device to that end. The Vermont court here appears not only to have departed from the grantor's intent to create such an estate, but to have done so by deliberately blinding itself from evidence that might have made that intent more clear.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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