Property I, Pages 338–340

Smith v. Rucker

Court of Appeals of South Carolina, 2004


Defendant Rucker, a home owner in her 70s married Smith, a man in his 80s. Rucker wanted to make sure that Smith would get the home if she died first, so she deeded him and undivided one-half interest in her home. The deed stated that they were to hold the land "for and during their join lives and upon the death of either of them, then to the survivor of them, his or her heirs and assigns forever in fee simple, together with every contingent remainder and right of reversion."

A conflict later arose between their families. Smith's son, the plaintiff, then filed a partition on behalf of his father, who had become incapacitated.

Procedural History:

Page 339, Paragraph 1
Book Editor

The equitable master granted summary judgment for Smith, holding that the deed created a joint tenancy in fee simple between Rucker and Smith and that this estate was subject to partition.


Page 339, Paragraph 2

[W]hether those survivorship rights are paired with a tenancy in common and therefore indestructible or whether they are paired with a joint tenancy, in which case the property would be subject to partition at the whim of either party.

Defendant's Argument:

Page 339, Paragraph 1
Book Editor

[T]he deed created a tenancy in common between Smith and Rucker for their lives, with each holding a remainder in fee simple contingent upon surviving the other, and that this remainder interest was not subject to partition.


The law assumes a co-ownership is created as a tenancy in common unless there is clear, unambiguous, and express language to the contrary.


The case satisfies the four unities required to create a joint tenancy. Since the same interest was created by the same conveyance, commencing at the same time, it unambiguously created a joint tenancy.


Page 339, Paragraph 2

[T]he deed created a joint tenancy with rights of survivorship