APPEAL from the Circuit Court of Woodford County; the Hon.
RICHARD M. BANER, Judge, presiding.
JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 26, 1982.
We lay to rest today an antiquated and obsolete legal fiction — the "strawman."
Here is a question of first impression: Can a joint tenant unilaterally sever that joint tenancy by conveying her interest to herself as a tenant in common without the use of an intermediary?
Plaintiff, the administrator of the estate of Agnes Grassman, appeals from a declaratory judgment order declaring defendant, Ida Grassman, sole surviving joint tenant of real property which, by reason of a 1938 deed, the deceased and defendant had owned in joint tenancy. The precise question before this court is whether the unilateral attempt by one joint tenant to terminate that tenancy by conveying her interest from herself as a joint tenant to herself as a tenant in common is effective to sever the joint tenancy.
Agnes (decedent) and Ida Grassman (defendant) were sisters. In 1938, Gustav Grassman executed a deed under which Agnes, Ida, and Frieda Grassman, a third sister, became owners in joint tenancy of the parcel of real estate. Frieda died in 1972, leaving Agnes and Ida as surviving joint tenants.
One week after the death of Frieda, defendant executed a deed conveying this parcel of property from herself as a joint tenant to herself as a tenant in common. The deed recited that this action was for the sole purpose of dissolving any and all rights of survivorship as between the parties to the deed executed by Gustav Grassman. It is undisputed that Agnes was unaware of what Ida had done.
On February 16, 1977, Agnes died. Her will, dated March 13, 1963, was admitted to probate with Minonk State Bank as administrator. The will disposes of all of Agnes' personal property but makes no mention of any disposition of real property. Subsequent to admission of the will to probate, Minonk State Bank filed this declaratory judgment action requesting a declaration by the court that Ida and Agnes held the property in tenancy in common by reason of severance of the joint tenancy by Ida through execution of the 1972 deed. Defendant, who is now incompetent, argued through her guardian ad litem that the 1972 deed she executed was ineffective and did not operate to destroy the joint tenancy so that she is the sole owner of the property by virtue of her having survived Agnes.
Before discussing this question, which has not heretofore been decided in Illinois, a review of the common law theory of joint tenancy, as well as its modern adaptations seems appropriate since other jurisdictions which have decided this question have reached diametrically opposed results on exactly the same facts.
Joint tenancies existed as early as the 13th century. Born in the feudal relationships pervasive in that era, it became a favored form of estate in land because of the vital importance of the tenure, the preeminent characteristic of real property in the feudal ages in which land or tenements were held in subordination to some superior. (2 American Law of Property § 6.1, at 3-4 (1952); Black's Law Dictionary 1317 (5th ed. 1979).) It was in the interest of the lord that each feudal holding be a single feud continuing until the death of the survivor. (2 American Law of Property § 6.1, at 3 (1952).) The rationale for the rule was given as follows:
"The common law favored title by joint tenancy, by reason of this very right of survivorship. Its policy was averse to the division of tenures, because it tended to multiply the feudal services, and weaken the efficacy of that connection." 4 Kent's Commentaries 361 (14th ed. 1896).
As a consequence, grantees took an estate as though they together constituted one person. Since all were seized as a fictitious entity, four classic unities developed which, albeit artificially, demonstrated their community of interest which required that individual interests be equal in all respects. (2 American Law of Property § 6.1, at 4 (1952).) The common law unities were, of course: time, title, interest, and possession. In essence, the common law joint tenancy required that the several tenants have one and the same interests accruing by one and the same ...