Hamel v. Gootkin

FORD, J.

The trial court determined that when Maude Cook Duin, now deceased, executed trust deeds on parcels of real property held by her and the respondent Gootkin in joint tenancy, a termination of the joint tenancy did not occur and that upon her death the title of the surviving joint tenant was not subject to the trust deeds. Mr. Gootkin did not consent to the execution of the trust deeds and was not aware thereof until after Maude Cook Duin’s death. The sole question presented on this appeal is whether such determination was correct as a matter of law.

In

People

v.

Nogarr,

164 Cal.App.2d 591 [330 P.2d 858, 68 A.L.R.2d 992], it was held that a mortgage executed under similar circumstances by one of two joint tenants was not enforceable after the death of that joint tenant. The court

[29]

said at page 594: “Inasmuch as the mortgage was but a lien or charge upon Calvert’s interest and as it did not operate to transfer the legal title or any title to the mortgagees or entitle the mortgagees to possession it did not destroy any of the unities and therefore the estate in joint tenancy was not severed and Elaine and Calvert did not become tenants in common. It necessarily follows that as the mortgage lien attached only to such interest as Calvert had in the real property when his interest ceased to exist the lien of the mortgage expired with it.

(Application of Gau,

230 Minn. 235 [41 N.W.2d 444];

Power

v.

Grace,

1 D.L.R. 801;

Zeigler

v.

Bonnell,

52 Cal.App.2d 217, 219-221 [126 P.2d 118] cited with approval in

Hammond