Hilborn v. Soale

[116]

SLOANE, J.

[1] The title to the property involved in this action was conveyed to the defendants and appellants, Carl B. Soale and Wilson H. Soale, her husband, by the following deéd:

“Grant Deed.

“Bertha E. Hookway and Wiliam R. Hookway, her husband, in consideration of ten dollars to them in hand paid, the receipt of which is hereby acknowledged, do hereby grant to Carl B. Soale and Wilson H. Soale, her husband, as joint tenants

with the right of survivorship,

all that real property situated in the city of Pasadena, county of Los Angeles, state of California, described as follows: Lot twenty-eight (28) of the Bixby Tract, as per map recorded in book 14, page 92, miscellaneous records of said county, subject to taxes fiscal year 1908-1909. To have and to hold to the said grantees

and to the survivor or [of] them forever.

“Witness their hands this second day of July, 1908.

“Bertha E. Hookway.

“William R. Hookway.”

Plaintiff claims title to an undivided half of the premises under an execution sale of the interest of Wilson H. Soale, and brought this action for partition between himself and the defendant Carl B. Soale. This appeal is from the interlocutory judgment in plaintiff’s favor.

The case turns on the construction of foregoing deed. Respondent claims that the conveyance created a joint tenancy in fee in the two grantees, and appellants contend that the effect of the deed was to create a joint life estate in the husband and wife, and a contingent remainder in fee to the survivor. Appellants’ contention is based upon the theory that the words in the deed, italicized herein for the purposes of this case, are effective to prevent the severance of the joint tenancy by execution sale, or voluntary act of either of the parties to the title, and preserve the right of survivorship by creating an independent title in the survivor upon this life estate. Without discussing the question as to whether or not such an estate can be created under the limitations of the California Civil Code, we are satisfied that the language of the instrument, as relied upon by appellants, is not calculated and was not intended to limit or modify the apt language for the creation of a joint tenancy. We see nothing in the