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DANIEL v. WRIGHT

December 22, 1972

Edna May DANIEL, Plaintiff,
v.
Herbert L. WRIGHT et al., Defendants


Flannery, District Judge.


The opinion of the court was delivered by: FLANNERY

FLANNERY, District Judge.

 Plaintiff, Edna May Daniel, seeks a declaratory judgment *fn1" that she owns an undivided one-half interest in real property located at 615 21st Street, Northeast, Washington, D.C. *fn2" She is the successor in interest of Pauline E. Liner, her mother, who was a principal figure in the transactions at issue in this case. *fn3" Defendants are Herbert L. Wright and Mattie G. Wright, his wife, who presently occupy the house in question. They contend that plaintiff owns only a one-third interest in the property. Both parties moved for summary judgment pursuant to Fed.R.Civ.P. 56.

 The following facts are undisputed. In 1939, plaintiff's parents and the defendants acquired the property as joint tenants and proceeded to occupy the premises. The 1939 deed conveyed the property to "Jefferson E. Liner and Pauline E. Liner, his wife, and Herbert L. Wright and Mattie G. Wright, his wife, . . . as joint tenants." Although it is clear that both couples contributed to the down payment and to the monthly payments on the deed of trust, there does not appear to exist any direct evidence as to the proportion paid by each couple.

 In 1942, Jefferson Liner died. Then, in 1944, the Wrights separated and Herbert Wright moved away. Before his departure, however, he and the two women conveyed the property, via a straw party, to the two women as joint tenants. The relevant language of the deeds in this transaction was "Pauline E. Liner, Herbert L. Wright and Mattie G. Wright, surviving joint tenants of Jefferson E. Liner [convey to] Mattie G. Wright and Pauline E. Liner . . . as Joint Tenants." *fn4" In 1953, Herbert Wright returned and the two women conveyed the property, via a straw party, to "Herbert L. Wright and Mattie G. Wright, his wife, and Pauline E. Liner . . . as joint tenants."

 The core question in this case is whether the three grantees in the 1953 conveyance each hold a one-third interest as joint tenants, *fn5" or whether the husband and wife, as an entirety, *fn6" hold a one-half interest as the joint tenant with the other party. The husband and wife are defendants in the present action; the other party to the 1953 conveyance is plaintiff's predecessor in interest.

 At common law a conveyance to husband and wife and another party presumptively granted a one-half interest to the third party and a one-half interest to the husband and wife as an entirety. 2 H. Tiffany, Real Property, § 431 at 222-23 (1939). But this axiom is only a rule of construction and the intent of the parties must be effected if it can be ascertained. Id.

 The lead case in the District of Columbia on tenancies by the entirety is Settle v. Settle, 56 App.D.C. 50, 8 F.2d 911 (1925) (discussed below). However, Settle involved a conveyance to husband and wife, rather than a conveyance to husband and wife and a third party. There are two important cases from other jurisdictions which involved a conveyance to husband and wife and a third party. Kolker v. Gorn, 193 Md. 391, 67 A.2d 258 (Ct.App.1949); Mosser v. Dolsay, 132 N.J.Eq. 121, 27 A.2d 155 (Ct.Ch. 1942). These cases deserve discussion.

 In Mosser v. Dolsay, supra, the conveyance read,

 
To Ralph Mosser of New Jersey, And
 
Frank Dolsay and Emma Dolsay, his wife as joint tenants and not as tenants in common, with the rights of survivorship incident thereto, of New Jersey, . . . .

 The court noted that at common law the husband and wife would take by the entirety, and further emphasized that the word "joint tenants" appeared to modify only the Dolsays' names, and not Mosser's name. Therefore, Mosser took one-half and the Dolsays took one-half by the entirety. The court pointed out that a different result may have been reached if the phrase "joint tenants" had modified all three names, since in New Jersey a husband and wife can take a joint tenancy if the grantor clearly intended this result.

 In Kolker v. Gorn, supra, the conveyance read, "[to] J. Gorn, S. Gorn and M. Gorn, his wife, as joint tenants, and not as tenants in common . . . ." There was testimony that all three owners contributed toward the cost of the property; that the intent was to have the husband and wife, as an entirety, own one-half as joint tenants with the third party; and that the monthly mortgage payments and the maintenance costs were split equally between the husband and wife on the one hand, and the third party on the other.

 The court noted that at common law a husband and wife could only hold by the entirety, but that in Maryland a husband and wife could hold as joint tenants if a clear intention to this effect appeared in the deed. This Maryland rule was recognized by the court as the minority view. Upon the face of the deed, each of the parties would own a one-third interest. Mosser was distinguished on the ground that in Kolker the phrase "joint tenants" appeared to modify all three names. However, in view of the testimony as to the parties' intent, the court held that ...


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