Lowenthal v. Kunz

HANSON, J. pro tem.

The question here presented is whether a joint tenancy deed executed by the record title holder to herself and another, as grantees, is invalid and ineffective merely because the title holder had originally acquired an undivided one-half interest in the property from her cograntee, without consideration, upon an oral agreement to hold said interest for her in trust. The answer to the question depends upon the interpretation to be given to Civil Code, section 683. As a prelude to its consideration we state the facts.

The defendant Adele Kunz and plaintiff’s intestate Pauline Lowenthal, while business partners, acquired in 1924, as tenants in common, the real property here involved by a grant deed which conveyed an undivided half interest therein to each. Until the death of Pauline the two continued to reside in the property. Meanwhile in 1932 Pauline by a grant deed conveyed her interest to Adele, without consideration, but upon the oral agreement of Adele to hold such interest in trust for Pauline. In 1943 Adele upon the request of Pauline executed a joint tenancy deed to the property in which she

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and Pauline were named as grantees. This deed was recorded in 1945. In 1948 Pauline died.

Plaintiff, as administrator of the estate of Pauline, contended in the court below, and contends here as well, that the joint tenancy deed was invalid by virtue of the provisions of Civil Code, section 683, and accordingly that he is vested with an equitable undivided one-half interest in the property by virtue of the oral agreement made by Adele in 1932.

The language of Civil Code, section 683, so far as it is here material and applicable (with the language within the brackets supplied by us), reads as follows:

“A joint interest is one owned by two or more persons in equal shares, by a title [legal, equitable or otherwise] created by a single . . . transfer, . . . from a

sole owner

to himself and others, . . . when expressly declared in the transfer to be a joint tenancy, ...” (Italics supplied.)

The statute expressly provides that a joint tenancy interest to be owned by two or more persons in equal shares may be created by a “transfer from a sole owner to himself and others.” Was Adele Kunz, the grantor in the joint tenancy deed to herself and Pauline, a “sole owner” within the meaning of that phrase in the statute