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  "name": "TEXAS AMERICAN BANK/LEVELLAND, Plaintiff-Appellee, v. Mary MORGAN, Defendant-Appellant, W.N. Halliburton, First Federal Savings & Loan Association of Clovis, Defendants",
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    "judges": [
      "SOSA, Senior Justice, and RANSOM, J., concur."
    ],
    "parties": [
      "TEXAS AMERICAN BANK/LEVELLAND, Plaintiff-Appellee, v. Mary MORGAN, Defendant-Appellant, W.N. Halliburton, First Federal Savings & Loan Association of Clovis, Defendants."
    ],
    "opinions": [
      {
        "text": "OPINION\nWALTERS, Justice.\nOn March 28, 1983, defendant Halliburton executed a warranty deed to himself and defendant Morgan, as joint tenants. The deed was recorded on April 6, 1983. At the time of the conveyance, defendant First Federal Savings and Loan Association held a mortgage covering the north 75.35 feet of the deeded property. The priority and amount of the mortgage held by First Federal Savings and Loan Association was stipulated to by plaintiff Texas American Bank (Bank), and defendants First Federal Savings and Loan Association, and Morgan.\nOn November 2, 1983, Bank loaned Halliburton $100,000 which was secured by a note and mortgage covering the real property . jointly owned by Halliburton and Morgan. Morgan was not a party to the loan or the mortgage. The mortgage was recorded on November 16, 1983.\nOn July 30, 1984, Halliburton conveyed by warranty deed his remaining interest in the property to Morgan. That deed was recorded on August 3, 1984.\nFollowing a default in payments, the Bank sued for foreclosure and the trial court entered a Judgment of Foreclosure and Sale covering all of the real property. Morgan appeals. We reverse and remand.\nMorgan raises the question whether Halliburton, as a joint tenant, could execute a mortgage which would encumber her interest in the property without her consent. Additionally, she contends that the execution of the mortgage by Halliburton severed the joint tenancy and that the Bank stepped into Halliburton\u2019s shoes at the time of the mortgage; consequently, that the proper remedy is a partition with foreclosure on what was Halliburton\u2019s interest at the time the mortgage was executed.\nNew Mexico has never addressed whether one joint tenant may encumber the property interest of another cotenant without consent. The jurisdictions which have decided this question, however, have uniformly agreed that one cotenant may not encumber the other cotenant\u2019s interest without consent. See, e.g., First National Bank of Southglenn v. Energy Fuels Corp., 200 Colo. 540, 618 P.2d 1115 (1980); Harms v. Sprague, 119 Ill.App.3d 503, 75 Ill.Dec. 155, 456 N.E.2d 976 (1983), aff'd, 105 Ill.2d 215, 85 Ill.Dec. 331, 473 N.E.2d 930 (1984); American National Bank and Trust Co. v. McGinnis, 571 P.2d 1198 (Okl. 1977); Glenn v. Webb, 565 S.W.2d 876 (Tenn.App.1977).\nIllinois has said that \u201c \u2018an act or contract by one joint tenant respecting the joint property without the authority or consent of his cotenants cannot bind or prejudically affect the latter.\u2019 \u201d Motz v. Central National Bank, 119 Ill.App.3d 601, 608, 75 Ill.Dec. 137, 143, 456 N.E.2d 958, 964 (1983) (quoting 23 Ill. L. & Prac. Joint Tenancy \u00a7 23 (1979)). We agree with that appraisal.\nA fundamental principal of property law is that a grantor can only give that which he owns. See 23 Am.Jur.2d Deeds \u00a7 336 (1983). Halliburton, being a joint tenant, was not free to execute a mortgage which would encompass a greater interest in the property than he owned himself. It stands to reason, therefore, that the mortgage which Halliburton executed could not encumber Morgan\u2019s interest in the property. See Harms v. Sprague; First National Bank of Southglenn v. Energy Fuels Corp.; American National Bank and Trust Co. v. McGinnis; Glenn v. Webb. Even so, that does not mean that the mortgage severed the joint tenancy.\nIn New Mexico, a mortgage is merely a lien and title does not pass to the mortgaged property, Slemmons v. Massie, 102 N.M. 33, 34, 690 P.2d 1027, 1028 (1984); hence, title and joint tenant unities are unaffected by the execution of a mortgage. American National Bank and Trust Co. v. McGinnis, 571 P.2d at 1200. Since the joint tenancy unity remains intact, a necessary conclusion is that the execution of a mortgage which encumbers one joint tenant\u2019s interest in property does not sever the joint tenancy. See, Harms v. Sprague; American National Bank and Trust Co. v. McGinnis; Brant v. Hargrove, 129 Ariz. 475, 479, 632 P.2d 978, 982 (App.1981).\nThe Bank relies on Everett v. Gilliland, 47 N.M. 269, 141 P.2d 326 (1943), for its assertion that Morgan took Halliburton\u2019s interest in the property subject to the mortgage becaus\u00e9 Morgan, upon receiving Halliburton\u2019s remaining interest, became the sole owner of the property and all the interests and encumbrances in the property merged, causing the mortgage to encompass Morgan\u2019s as well as Halliburton\u2019s interest.\nEverett, on its facts, is not helpful in deciding this case. Halliburton was not free to encumber Morgan\u2019s interest. Yet the Bank urges us, essentially, to expand the mortgage encumbering Halliburton\u2019s interest to encumber Morgan\u2019s property interest, too. We do not agree that the encumbrance on Halliburton\u2019s interest and the later deed will \u201cmerge\u201d so that the Bank\u2019s lien can reach more than it had a right to foreclose upon at the time it took the mortgage.\nThe corollary of the rule that a grantor can only give that which he owns, see 23 Am.Jur.2d Deeds \u00a7 336 (1983), is that a grantee can only receive that which the grantor is entitled to convey. Morgan, by way of warranty deed, received Halliburton\u2019s encumbered property interest. Halliburton was unable to execute a mortgage encumbering the entire property; likewise, Morgan was unable to receive Halliburton\u2019s interest unencumbered by the mortgage. But the Bank, having received a mortgage only upon Halliburton\u2019s interest, is unable to enlarge that encumbrance, after the fact, to encompass the entire property.\nOur decision is buttressed by the evidence that at the time Halliburton executed the mortgage, the Bank was on constructive notice, by reason of recordation, that Halliburton was merely a joint tenant. See Angle v. Slayton, 102 N.M. 521, 523, 697 P.2d 940, 942 (1985). The Bank did not require Morgan\u2019s approval of the mortgage, and we will not do for the Bank what it failed to do for itself. See Clovis National Bank v. Harmon, 102 N.M. 166, 692 P.2d 1315 (1984).\nAccordingly, we reverse the trial court and remand for judgment consistent with the interests of the parties.\nIT IS SO ORDERED.\nSOSA, Senior Justice, and RANSOM, J., concur.",
        "type": "majority",
        "author": "WALTERS, Justice."
      }
    ],
    "attorneys": [
      "C. Barry Crutchfield, Templeman and Crutchfield, Lovington, for defendant-appellant.",
      "David G. Grow, Walker, Tatum, Grow & McDowell, Clovis, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "733 P.2d 864\nTEXAS AMERICAN BANK/LEVELLAND, Plaintiff-Appellee, v. Mary MORGAN, Defendant-Appellant, W.N. Halliburton, First Federal Savings & Loan Association of Clovis, Defendants.\nNo. 16368.\nSupreme Court of New Mexico.\nFeb. 25, 1987.\nC. Barry Crutchfield, Templeman and Crutchfield, Lovington, for defendant-appellant.\nDavid G. Grow, Walker, Tatum, Grow & McDowell, Clovis, for plaintiff-appellee."
  },
  "file_name": "0416-01",
  "first_page_order": 456,
  "last_page_order": 458
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