The Farm, the Severed Joint Tenancy, and the Partition Demand
Alma, Ben, and Cora inherited a 240-acre farm and, in 2011, took title as joint tenants with right of survivorship, each contributing equally. In 2016 Ben executed and recorded a deed conveying his entire interest to his son Dev. Cora died intestate in 2018, survived by a husband and two adult children. In 2020 Alma mortgaged “all of her interest” in the farm to First Bank; the mortgage was recorded. Alma died last month. Her will, admitted to probate, devises her entire estate to her nephew, Noah. Dev has demanded a partition, arguing that he owns an undivided one-third and that the farm must be sold because a 240-acre farm cannot be fairly divided. Noah and First Bank object, contending that Dev owns nothing more than a right to receive one-third of the proceeds after the mortgage is paid. The jurisdiction follows the common law, recognizes tenancy in common and joint tenancy, and has a partition statute authorizing sale only when partition in kind would cause great prejudice.
1. After Alma’s death, what fractional interests does each claimant own, and how did each interest arise?
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Start with the 2011 deed. Alma, Ben, and Cora held equal one-third shares as joint tenants. The defining feature is the right of survivorship, not equal shares alone.
Ben’s 2016 deed worked a severance. A joint tenant may convey his interest unilaterally. Conveying Ben’s entire one-third destroyed the joint tenancy as to that share and created a tenancy in common between Dev and the two remaining joint tenants. Dev owns an undivided one-third. Alma and Cora continued to hold the other two-thirds as joint tenants between themselves.
Cora’s 2018 death passed her share by survivorship. Because Alma was the only remaining joint tenant on the two-thirds, Cora’s one-third went to Alma, not to Cora’s husband or children. Alma then owned two-thirds; Dev owned one-third.
Alma’s mortgage created only a lien. A mortgage does not transfer title; First Bank acquired an encumbrance on Alma’s two-thirds, not on Dev’s one-third.
Alma’s will passes her two-thirds to Noah, subject to the mortgage. The final ownership is Noah two-thirds, Dev one-third. Cora’s heirs take nothing because survivorship controlled. First Bank’s lien follows Noah’s two-thirds and does not touch Dev’s share.
2. Can Dev compel a sale of the entire farm, or only a partition in kind? What must the court consider, and who must be joined?
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Dev owns an undivided one-third as a tenant in common, so he has an absolute right to demand partition. He does not, however, have an absolute right to a forced sale.
Partition in kind comes first. The statute permits sale only when partition in kind would cause great prejudice. The court will examine whether 240 acres can be divided into economically usable tracts, whether there is a single farmhouse and barn, whether the parcels have independent access, and whether dividing the land would destroy its value. Dev’s assertion that a farm of this size “cannot be fairly divided” is a conclusion, not proof. A court could divide the land into three tracts, or into two tracts with one held in common, if that is feasible.
Sale is a remedy of last resort. If partition in kind would greatly prejudice the owners, the court may order a sale and divide the proceeds. Even then, the proceeds are distributed according to ownership, not according to who demanded the sale.
First Bank must be joined. It holds a lien on Noah’s two-thirds. A partition sale would pay the bank from Noah’s share of the proceeds; Dev’s one-third is not collateral for Alma’s debt and cannot be used to satisfy it.
3. If First Bank forecloses on Alma’s mortgage, what interest does the foreclosure buyer acquire, and can that buyer disturb Dev’s one-third?
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First Bank’s mortgage covers only Alma’s two-thirds interest. Foreclosure transfers whatever the mortgagor had, subject to senior interests and interests not made parties. Dev’s one-third predates the mortgage and is not owned by the mortgagor, so it is outside the mortgage lien.
The foreclosure buyer would become a tenant in common owning an undivided two-thirds, taking subject to Dev’s one-third. The buyer could demand partition, just as Dev can, but could not eject Dev or lease Dev’s share. If the property were sold in partition, Dev would receive one-third of the net proceeds, and First Bank’s claim would be satisfied only from Noah’s two-thirds share.
A different result would follow if the mortgage had been recorded before Ben’s deed and Dev had taken subject to it, but that is not this sequence. The key exam point is that a co-tenant can encumber only his own undivided interest; a mortgage on “all of her interest” cannot reach a cotenant’s share.