View opinion on Lexis Advance- Is a joint tenancy severed when less than all of the joint tenants mortgage their interest in the property? and
- Does such a mortgage survive the death of the mortgagor as a lien on the property?
Property I, Pages 344–348
Harms v. Sprague
Supreme Court of Illinois, 1984
Facts:
Plaintiff and his brother, John Harms, took title to real estate as joint tenants. Defendant purchased a home for $25,000, paying $18,000 in cash and a promissory note for the remaining $7,000. Because defendant had no security for the note, he asked plaintiff's brother to co-sign the note and give a mortgage on the interest in the joint tenancy property. Plaintiff's brother agreed and signed a note stating that the balance was to be paid within six months. John Harms then executed a mortgage on his half in favor of the Simmonses, without his brother's knowledge. Harms then moved from his joint tenancy property to the property purchased by defendant and then died. He devised his entire estate to defendant.
Procedural History:
The trial court held that the mortgage severed the joint tenancy and survived the death of John Harms as a lien against the undivided one-half interest in the property.
The appellate court reversed, finding that the mortgage given by one joint tenant of his interest in the property does not sever the joint tenancy and that plaintiff owned the property in its entirety as the the surviving joint tenant.
Issue:
Page 345, Paragraph 2
Reasoning:
Page 347, BottomA lien gives no title to land, and a mortgage is just a lien. As there is no change in title, the joint tenancy is not severed. When plaintiff's brother died then, the title went to him.
Rule/Holding:
A joint tenancy is not severed when less than all of the joint tenants mortgage their interest in the property.
A mortgage does not survive as a lien on the joint tenant's property. A surviving joint tenant succeeds to the share of the deceased joint tenant by virtue of the conveyance which created the joint tenancy.
Judgment:
Affirmed.