Severance of Tenancy: Execution
Weaver v. City of New Bedford, 335 Mass. 644, 140 N.E.2d 309 (see the memo, Severance of Tenancy, in Joint Tenancy) applied the common law rule concerning the nonseverance of a joint tenancy based on the facts in that case. That case, which was one of first impression, concerned the effect of an old age lien on a joint tenancy, and the court, citing Gua v. Hyland, 230 Minn. 235, 41 N.W.2d 444, held that such a lien did not sever the joint tenancy. However, in applying the common law rule the court cited Goff v. Yauman, 237 Wis. 643, 298 N.W. 179, 134 A.L.R. 952, where the Supreme Court of Wisconsin held otherwise, distinguishing that case based upon the fact that it was decided upon the construction of a statute.
Under G.L.c. 236, §12, a statute that addresses the question of severance in the case of an execution, it is provided that once property is taken on execution it shall thereafter be held in common with the co-tenant. This appears to be a legislative proclamation in derogation of the common law with respect to executions. It seems clear, notwithstanding the decision in Weaver that an execution will sever a joint tenancy, whether or not the execution “transfer[s] the title.” (Clearly, a sheriff’s sale would transfer title.) This is an important point for the examiner to focus on when performing a title examination: whether the execution is satisfied and released, or expires on its own terms, it seems that such a lien will sever the tenancy, so that if the death of one of the joint owners thereafter occurs, the surviving owner will not succeed to the title by reason of the tenancy.
The statute uses the term “taken on execution,” as opposed to levy and suspend on execution, which might suggest that a severance of the tenancy occurs only after the sale is complete. But it is axiomatic that a sale by the sheriff pursuant to a deed to a purchaser will sever the joint tenancy. It seems, therefore, that the statute is contemplating simply the recording of the execution as being the trigger which severs the tenancy and causes the debtor and the other tenants to be regarded as tenants in common. Otherwise the statute has no purpose not already governed by law. This is consistent with the recitations in the execution that the sheriff has seized the title (as opposed to the case of an attachment, where the title is simply impressed with a lien pending the outcome of the litigation).
Incidentally, see Park, Massachusetts Practice - Real Estate Law, West Publishing Company (Second Edition, 1981), §128 as to what matters will effect a severance of a joint tenancy. Ames v. Chandler, 265 Mass. 428, 164 N.E. 616 (1929) which interpreted G.L.c. 236, §12 is cited in that section. Although there was a sale, the court states that the joint tenancy was severed because the property was “taken on execution,” the exact language of the statute. As to what the phrase means, see Still Associates, Inc. v. Porter, 24 Mass.App.Ct. 26, 505 N.E.2d 570 (1987).
1 It’s interesting to note that G.L.c. 236, §12 applies even when the debtor was initially holding title as a tenant in common.