Construction of Deeds – Destructibility of JTWROS

Peinhardt and Todd v. Peinhardt, [Ms. 1200383, Sept. 24, 2021] __ So. 3d __ (Ala. 2021). The Court (Mendheim, J.; Parker, C.J., and Bolin, Shaw, Wise, Bryan, Stewart, and Mitchell, JJ., concur; Sellers, J., concurs in the result) reverses the Cullman Circuit Court’s summary judgment dismissing an action to partition a parcel of real property by sale for division. The issue turned on whether a deed to the property created an indestructible tenancy in common with right of survivorship or a joint tenancy with right of survivorship (JTWROS). The Court notes that

[L]anguage nearly identical to that used in the granting and habendum clauses of the April 3, 1965, deed has repeatedly been interpreted as creating a joint tenancy. We see no reason to depart from that understanding in this case. Even if it could be said that the introductory language of the deed and the language in the granting clause conflict, “the granting clause in a deed determines the interest conveyed, and unless there is repugnancy, obscurity or ambiguity in that clause, it prevails over introductory statements or recitals in conflict therewith, and over the habendum, too, if that clause is contradictory or repugnant to it." Slaten v. Loyd, 282 Ala. 485, 487-88, 213 So. 2d 219, 220-21 (1968).

Ms. *28.

The Court holds that “[a] careful reading of the April 3, 1965, deed and a consistent interpretation of language nearly identical to that used in the granting clause in previous cases dictates that Louis Jr., Amelia, and Louise were conveyed a joint tenancy with a right of survivorship with respect to the portion of the subject property at issue. In a joint tenancy, the right of survivorship is destructible without consent from the joint owners.” Ms. *29.

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