{ "id": 6138211, "name": "Brenda Kay JAMES, et. al v. Melba Joe TAYLOR", "name_abbreviation": "James v. Taylor", "decision_date": "1998-05-20", "docket_number": "CA 97-1404", "first_page": "130", "last_page": "136", "citations": [ { "type": "official", "cite": "62 Ark. App. 130" }, { "type": "parallel", "cite": "969 S.W.2d 672" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "300 Ark. 416", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886882 ], "weight": 2, "year": 1989, "pin_cites": [ { "parenthetical": "a rule of property law should be applied whenever the language of the conveyance fits under the rule, without regard to the conveyor's intention" }, { "parenthetical": "a rule of property law should be applied whenever the language of the conveyance fits under the rule, without regard to the conveyor's intention" } ], "opinion_index": 0, "case_paths": [ "/ark/300/0416-01" ] }, { "cite": "202 Ark. 645", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1450004 ], "weight": 2, "year": 1941, "opinion_index": 0, "case_paths": [ "/ark/202/0645-01" ] }, { "cite": "256 Ark. 1035", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726415 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/256/1035-01" ] }, { "cite": "46 A.L.R.2d 523", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1956, "pin_cites": [ { "page": "\u00a7 2" } ], "opinion_index": 0 }, { "cite": "336 Mo. 380", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8734121 ], "weight": 2, "year": 1935, "opinion_index": 0, "case_paths": [ "/mo/336/0380-01" ] }, { "cite": "71 S.W. 135", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1902, "pin_cites": [ { "page": "136", "parenthetical": "overruled on other grounds in Holloway v. Burke, 336 Mo. 380, 79 S.W.2d 104 (1935)" } ], "opinion_index": 0 }, { "cite": "170 Mo. 227", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8733666 ], "year": 1902, "pin_cites": [ { "parenthetical": "overruled on other grounds in Holloway v. Burke, 336 Mo. 380, 79 S.W.2d 104 (1935)" } ], "opinion_index": 0, "case_paths": [ "/mo/170/0227-01" ] }, { "cite": "585 S.W.2d 483", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9940196 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/sw2d/585/0483-01" ] }, { "cite": "151 Colo. 376", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 5314341 ], "weight": 2, "year": 1963, "pin_cites": [ { "parenthetical": "where an instrument is silent or ambiguous as to the nature of the joint, estate created, it will be construed as creating a tenancy in common" }, { "parenthetical": "where an instrument is silent or ambiguous as to the nature of the joint, estate created, it will be construed as creating a tenancy in common" } ], "opinion_index": 0, "case_paths": [ "/colo/151/0376-01" ] }, { "cite": "94 Colo. 222", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 5363881 ], "weight": 4, "year": 1934, "pin_cites": [ { "page": "224-25" }, { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/colo/94/0222-01" ] }, { "cite": "47 N.W.2d 194", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 Minn. 467", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 178251 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/minn/233/0467-01" ] }, { "cite": "313 Ark. 515", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914660 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0515-01" ] }, { "cite": "264 Ark. 304", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668859 ], "weight": 3, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/264/0304-01" ] }, { "cite": "256 N.W.2d 883", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 12025568 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nw2d/256/0883-01" ] }, { "cite": "245 Ark. 742", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1606889 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/245/0742-01" ] }, { "cite": "263 Ark. 365", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672607 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0365-01" ] }, { "cite": "205 Ark. 523", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1488327 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/ark/205/0523-01" ] }, { "cite": "35 Ark. App. 192", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6650603 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark-app/35/0192-01" ] }, { "cite": "38 Ark. App. 71", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137411 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/38/0071-01" ] }, { "cite": "207 Ark. 761", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1481710 ], "weight": 2, "year": 1944, "opinion_index": 0, "case_paths": [ "/ark/207/0761-01" ] }, { "cite": "254 Ark. 332", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1624082 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/ark/254/0332-01" ] }, { "cite": "Ark. Code Ann. \u00a7 18-12-603", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "opinion_index": 0 } ], "analysis": { "cardinality": 697, "char_count": 11952, "ocr_confidence": 0.756, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.32324143222249635 }, "sha256": "a4c4627f3a26b57757c230cb77d27a37939c03bced6ad5259a9b642d9ce254c5", "simhash": "1:fb0e986a010cb618", "word_count": 2040 }, "last_updated": "2023-07-14T22:09:37.997804+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Robbins, C.J., and Jennings, J., agree." ], "parties": [ "Brenda Kay JAMES, et. al v. Melba Joe TAYLOR" ], "opinions": [ { "text": "John Mauzy Pittman, Judge.\nThe issue in this case is whether a deed from the late Eura Mae Redmon to her three children, W.C. Sewell, Billy Sewell, and appellee Melba Taylor, was a conveyance to them as tenants in common or as joint tenants with the right of survivorship. The chancellor held that Mrs. Redmon intended for her children to take the property as joint tenants with the right of survivorship. We reverse and remand.\nThe deed in question was executed by Mrs. Redmon on January 14, 1993. The conveyance was made to the three grantees \u201cjointly and severally, and unto their heirs, assigns and successors forever,\u201d with the grantor retaining a life estate. W.C. Sewell and Billy Sewell died on November 18, 1993, and May 11, 1995, respectively. Mrs. Redmon died on February 17, 1997. Shortly thereafter, appellee filed a complaint in White County Chancery Court seeking a declaration that her mother had intended to convey the property to the grantees as joint tenants, thereby making appellee, by virtue of her brothers\u2019 deaths, sole owner of the property. Appellants, who are descendants of W.C. and Billy Sewell, opposed the complaint on the ground that the deed created a tenancy in common among the grantees.\nThe case went to trial, and the chancellor, upon hearing extrinsic evidence of Mrs. Redmon\u2019s intent, found that she meant to convey the property to her children as joint tenants with the right of survivorship. He thereby quieted title to the property in appellee. It is from that order that this appeal has been brought.\nAppellants and appellee agree that the term \u201cjointly and severally\u201d as used to describe an estate in property is ambiguous. However, they disagree over the rule of construction to be applied in the face of such ambiguity. Appellants contend that, under Arkansas law, a deed to two or more persons presumptively creates a tenancy in common unless the deed expressly creates a joint tenancy. They cite Ark. Code Ann. \u00a7 18-12-603 (1987), which reads as follows: \u201cEvery interest in real estate granted or devised to two (2) or more persons, other than executors and trustees as such, shall be in tenancy in common unless expressly declared in the grant or devise to be a joint tenancy.\u201d According to appellants, the very existence of an ambiguity within the deed means that, under the statute, a tenancy in common has been created. Appellee, on the other hand, points to the well-established rule that, when faced with an ambiguity in a deed, the trial court may determine the intent of the grantor by looking to extraneous circumstances to decide what was really intended by the language in the deed. See Wynn v. Sklar & Phillips Oil Co., 254 Ark. 332, 493 S.W.2d 439 (1973); Barnett v. Morris, 207 Ark. 761, 182 S.W.2d 765 (1944). Because, appellee argues, the chancellor in this case had strong evidence before him that Mrs. Redmon intended to create a joint tenancy in her children, his finding should not be overturned unless clearly erroneous. See generally Bright v. Gass, 38 Ark. App. 71, 831 S.W.2d 149 (1992); Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991).\nThe extrinsic evidence considered by the chancellor in this case weighs in favor of appellee. That evidence consisted of appel-lee\u2019s testimony that her mother had informed her attorney that she wanted the deed drafted so that, if one of her children died, the property would belong to the other two children, and so on; that shordy after the death of W.C. Sewell, Mrs. Redmon executed a new will leaving her property to Billy Sewell and appellee and leaving nothing to W.C.\u2019s children; that Mrs. Redmon had set up bank accounts payable upon her death to her children, and, after W.C. and Billy died, deleted their names leaving the name of the surviving child; and that Mrs. Redmon was upset before her death upon learning that there was a problem with the deed. However, we hold that the considerations expressed in Ark. Code Ann. \u00a7 18-12-603 override the rule of construction urged by appellee.\nSection 18-12-603 is a statute like one of many throughout the country. At common law, joint tenancy was favored and, where possible, that estate was held to exist. Ferrell v. Holland, 205 Ark. 523, 169 S.W.2d 643 (1943). However, in Arkansas, and in many other states, statutes have been adopted which presumptively construe an instrument to create a tenancy in common rather than a joint tenancy. Id.; 20 Am. JuR.2d Cotenancy \u00a7 17 at 118 (rev. ed. 1995). These statutes do not prohibit joint tenancies but merely provide for a construction against a joint tenancy if the intention to create it is not clear. Mitchell v. Mitchell, 263 Ark. 365, 565 S.W.2d 29 (1978); Metropolitan Life Ins. Co. v. Gardner, 245 Ark. 742, 434 S.W.2d 266 (1968). A statute such as section 18-12-603 is not an expression of a public policy against joint tenancies but is merely a choice by the legislature of a rule of construction that selects one of two possible interpretations of a provision otherwise ambiguous. See Renz v. Renz, 256 N.W.2d 883 (N.D. 1977).\nOrdinarily, a statute such as section 18-12-603 does not require the actual use of the words \u201cjoint tenancy.\u201d See 20 Am. Jur. 2d Cotenancy \u00a7 17 at 119 (rev. ed. 1995). For example, Wood v. Wood, 264 Ark. 304, 571 S.W.2d 84 (1978), involved a conveyance to \u201cBoyd E. Wood and Murtha A. Wood, husband and wife, as tenants by entirety.\u201d In fact, the grantees were not legally married, and no entireties estate was created. However, our supreme court held that the conveyance satisfied the requirements of the statute necessary to create a joint tenancy because it was clear that the grantor intended to convey a survivorship estate. Survivorship is the distinctive characteristic of a joint tenancy. 48A C.J.S. Joint Tenancy \u00a7 3 at 302 (1981). Where, from the four corners of an instrument, a court can interpret the intention of the grantor or testator as creating a survivorship estate, the court will deem the estate to be a joint tenancy with the right of survivor-ship. Wood v. Wood, supra. See also Brissett v. Sykes, 313 Ark. 515, 855 S.W.2d 330 (1993).\nNothing appears from the four corners of the deed in this case to indicate Mrs. Redmon\u2019s intent to convey a survivor-ship interest, unless that intention is to be found in the term \u201cjointly and severally.\u201d Appellants do not cite, nor have we discovered through our own research, any Arkansas case in which a grant of ownership was made to two or more parties \u201cjointly and severally.\u201d As the chancellor noted below, \u201cjointly and severally\u201d are words of tort, not property. They have no meaning in the world of estates. In the context of an ownership interest, such a term is a legal anomaly; several ownership is, by definition, a denial of joint ownership. See Park Enters., Inc. v. Track, 233 Minn. 467, 47 N.W.2d 194 (1951). However, two cases from other jurisdictions are persuasive. In In re: Kwatkowski\u2019s Estate, 94 Colo. 222, 29 P.2d 639 (1934), the court interpreted a will that had devised property to two devisees \u201cjointly and severally.\u201d The court held that, in light of a statute similar to ours, no joint tenancy was created. In so holding, the court said the following:\nIt thus appears that for over seventy years the policy of this jurisdiction, as declared by the Legislature, has been to prefer tenancies in common at the expense of joint tenancies. Our problem is therefore not the usual one of merely applying a liberal interpretation and construction to a will. We are called'upon to enforce a statute. We are not at liberty to nullify it. To do so would be to encroach upon a co-ordinate branch of the state government .... The duty to enforce the law as we find it cannot be side-stepped by simply saying that notwithstanding the absence of the above mentioned declaration, the testator intended to establish a joint tenancy, either because there is parol evidence of the alleged intention, or because we might indulge a conjecture that such was his intention on account of the expression \u201cjointly and severally\u201d found in the will.\nId. at 224-25; 29 P.2d at 640. See Konecny v. Gunten, 151 Colo. 376, 379 P.2d 158 (1963) (where an instrument is silent or ambiguous as to the nature of the joint, estate created, it will be construed as creating a tenancy in common).\nIn Montgomery v. Clarkson, 585 S.W.2d 483 (Mo. 1979), property was deeded to two grantees \u201cjointly.\u201d The Missouri court, relying on a statute virtually identical to ours, held that a joint tenancy was not created by the use of such language. In doing so, the court quoted the following language from Lemmons v. Reynolds, 170 Mo. 227, 71 S.W. 135, 136 (1902) (overruled on other grounds in Holloway v. Burke, 336 Mo. 380, 79 S.W.2d 104 (1935)), a case involving a devise in a will:\n\u201cIt is essentially true that the intention of the testator shall be sought and effectuated in construing and enforcing wills, but this rock-ribbed rule of construction, so strictly and faithfully followed in this state, is subject to this very vital qualification, to wit, that it must not conflict with any inflexible rule or requirement of law. Such is the case here. The statute . . . has declared the effect of a conveyance or devise of real estate in the event that the grant or devise does not expressly declare that a joint tenancy is intended. No such intention is expressly declared in this will .... It is therefore not within the power or province of the courts, under any rule of interpretation, or to carry out any unexpressed intention of the grantor or testator, to construe such a grant or devise to be a joint tenancy, for the statute says it is a tenancy in common.\u201d\n585 S.W.2d at 484. The holding in Montgomery is in accord with the rule that a conveyance to grantees \u201cjointly\u201d does not create a joint tenancy. See Annot., What Constitutes a Devise or Bequest in Joint Tenancy Notwithstanding Statute Raising a Presumption Against Joint Tenancy, 46 A.L.R.2d 523, \u00a7 2 (1956). See also 2 American Law of Property \u00a7 6.3 at 13 (1952) (the better rule is that the word \u201cjointly\u201d is equivocal).\nIf use of the word \u201cjointly\u201d is not sufficient to create a joint tenancy, the term \u201cjointly and severally,\u201d with its elusive connotation, cannot do so either. Further, Arkansas recognizes that the practice of divining the intent of a grantor or testator is subject to the qualification that such practice must not conflict with settled principles of law and rules of property. Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974); Missouri Pacific Rd. Co. v. Strohacker, 202 Ark. 645, 152 S.W.2d 557 (1941). See Smith v. Wright, 300 Ark. 416, 779 S.W.2d 177 (1989) (a rule of property law should be applied whenever the language of the conveyance fits under the rule, without regard to the conveyor\u2019s intention).\nAppellee argues that, given the deed\u2019s ambiguity, our focus should be on the intent of the grantor as gleaned not only from the instrument itself but from the extrinsic evidence presented at trial. However, evidence of the grantor\u2019s intention cannot prevail over the statute. To allow that would be to render section 18-12-603 meaningless.\nBased upon the foregoing, we hold that the deed in this case did not create a joint tenancy in the grantees. The language of the deed is insufficient to overcome the statutory presumption of a tenancy in common. We therefore reverse and remand with directions for entry of an order consistent with this opinion.\nIn fight of our holding, we need not address appellants\u2019 second argument, that the trial court erred in admitting evidence of changes Mrs. Redmon made in her will.\nReversed and remanded.\nRobbins, C.J., and Jennings, J., agree.", "type": "majority", "author": "John Mauzy Pittman, Judge." } ], "attorneys": [ "Irwin Law Firm, by: Robert E. Irwin, for appellants.", "Lightle, Beebe, Raney, Bell & Simpson, by: A. Watson Bell, for appellee." ], "corrections": "", "head_matter": "Brenda Kay JAMES, et. al v. Melba Joe TAYLOR\nCA 97-1404\n969 S.W.2d 672\nCourt of Appeals of Arkansas Division III\nOpinion delivered May 20, 1998\nIrwin Law Firm, by: Robert E. Irwin, for appellants.\nLightle, Beebe, Raney, Bell & Simpson, by: A. Watson Bell, for appellee." }, "file_name": "0130-01", "first_page_order": 154, "last_page_order": 160 }