In re Griffin

1

IN RE ESTATE OF THOMAS LEE GRIFFIN

No. W2023-00508-COA-R3-CV

Court of Appeals of Tennessee, Jackson

February 29, 2024

Session October 17, 2023

Appeal from the Probate Court for Shelby County No. PR-03748 Joe Townsend, Judge

This appeal arises from a petition for declaratory judgment concerning a quit claim deed. By the quit claim deed, the grantor, now deceased, conveyed to the respondent an undivided one-half interest in the property. Following the property description and derivation clause, the deed expressly provided that it was the intention of the grantor and the grantee to create a joint tenancy with a right of survivorship. The respondent filed a motion for summary judgment, asserting that the survivorship language in the deed was sufficient to create a right of survivorship in the respondent. The trial court entered an order denying the respondent's motion for summary judgment and granting the petition for declaratory judgment in favor of the petitioner. The respondent appealed. We reverse.

Tenn R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Reversed

Allan J. Wade and Brandy S. Parrish, Memphis, Tennessee, for the appellant, David Steven Griffin, Sr.

Edward T. Autry and R. Scott Vincent, Memphis, Tennessee, for the appellee, Mark E Griffin.

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J., W.S., and KENNY W. ARMSTRONG, J., joined.

OPINION

CARMA DENNIS MCGEE, JUDGE.

I. FACTS &PROCEDURAL HISTORY

In June 1992, Thomas L. Griffin ("Decedent") purchased and took title by warranty deed to real property ("the Property") located in Arlington, Tennessee. In May 1998, Decedent executed a quit claim deed to his son, David Steven Griffin, Sr. ("Respondent").

The deed was completed on a printed form with the information typewritten onto blank lines and read, in relevant part:

KNOW ALL MEN BY THESE PRESENTS, That the undersigned, Grantor herein, for and in consideration of the sum of TEN AND NO/100 ($10.00) DOLLARS, do hereby bargain, sell, remise, release, quit claim and convey unto David Steven Griffin, Sr., an undivided one-half (1/2) ownership interest in and to the following described real estate located in [blank line], County of Shelby, State of Tennessee, to-wit:

[Property Description]

[Derivation Clause]

It is the intention of Grantor and Grantee by this conveyance to create a joint tenancy with right of survivorship.

Decedent died intestate in May 2015 and was survived by his two sons, Mark E. Griffin ("Petitioner") and Respondent. In August 2017, Petitioner, who was also the administrator of Decedent's estate, filed a petition for declaratory judgment in the probate court, seeking a declaration as to the rights of the intestate heirs of Decedent in the Property. Petitioner argued that the quit claim deed did not include sufficient language to attach a right of survivorship to Respondent's interest, and thus, Decedent's estate and Respondent each owned an undivided one-half interest in the Property. In March 2018, Respondent filed a motion for summary judgment seeking dismissal of the petition for declaratory judgment with prejudice. Along with the motion, Respondent filed a statement of undisputed facts, to which Petitioner did not file a response.

In March 2023, the trial court held a hearing on Respondent's motion for summary judgment and on the petition for declaratory judgment.^[1] The trial court denied Respondent's motion for summary judgment and granted the petition for declaratory judgment in favor of Petitioner. The trial court reasoned that because the statement of the intention of grantor and grantee to "create a joint tenancy with a right of survivorship" was located in the "advisement section"^[2] of the deed instead of in the "grant section," the survivorship language could not convey an interest in the Property and could not create a joint tenancy with right of survivorship "where none was conveyed in the grant section . . . ." Thus, the court found that the quit claim deed executed by Decedent did not create a joint tenancy with right of survivorship but instead granted to Respondent an undivided one-half ownership interest as a tenant in common without a right of survivorship. The trial court further found that the remaining undivided one-half ownership interest vested immediately in both Respondent and Petitioner upon Decedent's death. Respondent subsequently appealed.

II. ISSUES PRESENTED

Respondent presents the following issues for review on appeal, which we have slightly restated:

1. Whether the trial court erred by denying Respondent's motion for summary judgment and by granting the petition for declaratory judgment in favor of Petitioner;

2. Whether the quit claim deed created a tenancy in common between grantor and grantee under Tennessee Law and contained language sufficient as a matter of law to attach a right of survivorship to the tenancy in common between grantor and grantee established by that deed.

For the following reasons, we reverse the decision of the trial court.

III. STANDARD OF REVIEW

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Tenn. R. Civ. P. 56.04. A trial court's decision to grant summary judgment is reviewed de novo with no presumption of correctness. Falls v. Goins, 673 S.W.3d 173, 178 (Tenn. 2023). On appeal, we must "make a fresh determination about whether the requirements of Rule 56 have been met." TWB Architects, Inc. v. Braxton, LLC, 578 S.W.3d 879, 887 (Tenn. 2019) (citing Rye v. Women's Care Ctr. of Memphis, 477 S.W.3d 235, 250 (Tenn. 2015)).

The interpretation of a deed is a question of law. Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 466 (Tenn. 2012) (citing Griffis v. Davidson Cnty. Metro. Gov't, 164 S.W.3d 267, 274 (Tenn. 2005); Mitchell v. Chance, 149 S.W.3d 40, 45 (Tenn. Ct. App. 2004)). The proper standard of review for questions of law is de novo with no presumption of correctness. Eberbach v. Eberbach, 535 S.W.3d 467, 473 (Tenn. 2017) (citing Barnes v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006); Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005)).

IV. DISCUSSION

We begin by addressing Respondent's second issue concerning whether he held a right of survivorship in the Property. In Tennessee, there are three basic forms of concurrent ownership in real property: tenancy by the entirety, joint tenancy, and tenancy in common. Bryant, 522 S.W.3d at 399. The Tennessee Supreme Court has described these as follows:

A tenancy by the entirety is held exclusively by persons who are legally married. It is ancient in origin and remains firmly established in Tennessee. [Griffin v. Prince 632 S.W.2d 532, 534-35 (Tenn. 1982)]; see Tenn. Code Ann. §§ 36-3-505, 31-1-108. Tenancy by the entirety is based on the concept that those who are married are not separate persons; rather, they "are but one person." Tindell v. Tindell, 37 S.W. 1105, 1106 (Tenn. Ch. App. 1896) (quoting Den v. Hardenbergh, 10 N.J.L. 42, 45 (1828)); see Taul v. Campbell, 15 Tenn. (7 Yer.) 319, 333 (1835) (noting that a husband and wife "take but one estate, as a corporation would take, being by the common law deemed but one person"). Consequently, co-tenants in a tenancy by the entirety do not hold their interest by moieties (by parts), they hold by the entirety: "Each is not seised of an undivided moiety, but both are ... seised of the whole. They are seised, not per my et per tout [by the half and by the whole], but solely and simply per tout [by the whole]." Tindell, 37 S.W. at 1106 (quoting Den, 10 N.J.L. at 45).

When property is held in a tenancy by the entirety, upon the death of one spouse, the survivor continues to own the whole in fee simple. Technically, then, the surviving spouse does not acquire the fee simple interest through a right of survivorship; the survivor "enjoys the whole [after the death of the other spouse], ... not because any new or further estate or interest becomes vested, but because of the original conveyance, and of the same estate and same quantity of estate as at the time the conveyance was perfected." Id. (quoting Den, 10 N.J.L. at 45) (explaining that "[b]etween husband and wife, the jus accrescendi [right of survivorship] does not exist"); see Cole Mfg. Co. v. Collier, 95 Tenn. 115, 31 S.W. 1000, 1001 (1895); Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695, 698 (1956); Taul, 15 Tenn. (7 Yer.) at 336-37.

At common law, the primary difference between holding in joint tenancy and tenancy in common is that joint tenancy includes a right of survivorship between the co-tenants by operation of law, whereas tenancy in common does not. See [Peebles v. Peebles, 443 S.W.2d 469, 470 (Tenn. 1969)]; [Bunch v. Bunch, No. 02A01-9705-CH-00106, 1998 WL 46217, at *1 (Tenn. Ct. App. Jan. 8, 1998).] While a tenancy by the entirety can consist only of two persons seized of one estate, both joint tenancy and tenancy in common "impl[y] a plurality of persons" and "each of the owners has an undivided moiety, or other proportional part, of the whole premises." Tindell, 37 S.W. at 1106 (quoting Den, 10 N.J.L. at 45); see Taul, 15 Tenn. (7 Yer.) at 336 (citation omitted) (noting that, unlike a tenancy by the entirety, "[t]he estate of joint tenants is [a] unit, made up of divisible parts subsisting in different natural persons").

"Tenants in common are jointly seized of the whole estate, each having an equal right of entry and possession ...." Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695, 697 (1956). Right of survivorship is not an incident of tenancy in common; however,

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