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Diane M. Johnson v. Carol L. MacIntyre, No. 24, September Term, 1999.

[Real Property - Partition - Tract owned by two persons in joint tenancy. By two metes and bounds deeds, one joint tenant conveyed a part of the tract to the grantor and the cotenant as joint tenants, and the remainder of the tract to the grantor and a third party as joint tenants. Held: Original joint tenancy severed. Conveyances effective to convey to grantees grantor's undivided interest in described parcels. Rights of parties explained.]

Circuit Court for Montgomery County Case Civil No. 165848

IN THE COURT OF APPEALS OF MARYLAND No. 24 September Term, 1999 _________________________________________

DIANE M. JOHNSON

v.

CAROL L. MacINTYRE

_________________________________________ Bell, C.J. Eldridge Rodowsky Raker Wilner Cathell Harrell, JJ. _________________________________________ Opinion by Rodowsky, J. ________________________________________ Filed: November 12, 1999

We consider here the effect of a conveyance to a third party by one joint tenant, without the consent of the other joint tenant, of a parcel, described by metes and bounds, out of a larger, jointly-held tract. The issue arises in the grantee's action for an adjudication of rights and for partition. The petitioner, Diane M. Johnson (Johnson), and the respondent, Carol L. MacIntyre (MacIntyre), are the daughters of Ada L. Lowe (Lowe). In May of 1976, Lowe solely owned in fee simple a tract that included all of Lot 41 in Section No. 1 of the Cabin John Park subdivision (Lot 41) in Montgomery County.1 Lot 41 was then and is now improved by two single-family residences, one known as 7653 MacArthur Boulevard, located on the western portion of Lot 41, and the other known as 7647 MacArthur Boulevard, located on the eastern portion of Lot 41. On May 13, 1976, Lowe deeded all of Lot 41 to herself and to Johnson "in fee simple, as joint tenants" (the 1976 Deed). On March 10, 1983, Lowe executed and acknowledged, and on April 7, 1983, recorded two deeds. By its terms, the deed first recorded conveyed the western portion of Lot 41, described by metes and bounds, to Lowe and Johnson "in fee simple, as joint tenants" (the Johnson Deed). The second deed, recorded immediately after the Johnson Deed, by its terms conveyed the eastern portion of Lot 41, described by metes and bounds, to Lowe and MacIntyre "in fee simple, as joint tenants" (the MacIntyre Deed). The deeds made the two parcels "subject to a joint driveway." Johnson did not sign these deeds or authorize Lowe to act on her behalf in executing them. The litigation in the circuit court also involved an adjacent lot, but that lot is not involved in this appeal.
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-2Lowe executed her will in August 1994, devising "all of [her] interest" in both the western and the eastern parcels to Johnson. For approximately twenty years Johnson had lived in the residence on the western parcel while Lowe had lived in the residence on the eastern parcel. Lowe died August 31, 1996. After Lowe's death, Johnson and MacIntyre each claimed title to the eastern parcel. MacIntyre sued Johnson and the Lowe estate in the Circuit Court for Montgomery County, and it appears that the residence on the eastern parcel has remained unoccupied during this litigation. MacIntyre seeks, inter alia, to quiet title to the eastern parcel in MacIntyre's favor "as surviving joint tenant pursuant to the [MacIntyre Deed]"; to possess that property; and, in the alternative, to partition "said property," in the event that the MacIntyre Deed did "not convey the entirety of 7647 MacArthur Boulevard to ... MacIntyre."2 Both parties moved for summary judgment. In her motion for summary judgment, MacIntyre made the following contentions. The 1976 Deed conveyed Lot 41 to Lowe and Johnson as joint tenants. The 1983 deeds, "construed as a single, integrated transaction," severed the prior joint tenancy as to all of Lot 41 and conveyed to MacIntyre "an undivided interest, held in joint tenancy [with Lowe], in a special tract in Lot 41." As a result, Johnson's interest became "that of a tenant in common with an undivided one half interest in the whole of Lot 41."

Johnson counterclaimed and cross-claimed seeking the opposite of the relief sought by MacIntyre.

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-3MacIntyre admitted that, "under the basic principle of cotenancy[,] ... if each tenant has an undivided right to possession of the whole, then one cotenant may not carve out a specific portion of the property for exclusive use." Nonetheless, MacIntyre argued that the 1983 deeds had severed the joint tenancy between Lowe and Johnson and conferred upon MacIntyre as grantee "'rights, which will be considered by the court in making the partition of the whole tract, and which will be respected, so far, and so far only, as they can be without prejudice to the original co-tenant of the entire tract.'" Oneal v. Stimson, 74 S.E. 413, 414 (W. Va. 1912) (quoting Boggess v. Meredith, 16 W. Va. 1, 29 (1879)). MacIntyre further submitted that the court could respect Johnson's rights, or give her "no less than what she was entitled to receive prior to the execution of the 1983 deeds," by partitioning Lot 41 and assigning the western portion to Johnson and the eastern portion to MacIntyre. MacIntyre stated: "In view of the fact that [Johnson] has resided on the western portion of Lot 41 (7653 MacArthur Boulevard) for almost two decades, and that [Lowe] had resided on the eastern portion of Lot 41 (7647 MacArthur Boulevard) for that same period of time, and in view of the fact that the tax map reflected the same division ... the portion that [Lowe] would have been allotted in any partition action would have been the eastern portion. The fact that [Lowe] executed a deed attempting to convey exactly that portion to herself and [MacIntyre, as joint tenants] and attempting to confirm the other portion in [Johnson] proves that such a division was certainly within [Lowe's] contemplation. Thus, in any partition action as between [Lowe] and [Johnson] as to Lot 41, [Johnson] would have gotten the portion on which she had always resided--the western portion. Such a partition now, assigning [MacIntyre] that 'part ... of the share of [her] grantor'--i.e. the eastern portion--works no prejudice to [Johnson] as the co-tenant of the grantor in the entire tract. If [Johnson] is allotted the western portion of Lot 41, she will receive no less than that which she would

-4have been entitled to in any event in any partition action between herself and [Lowe]."3 MacIntyre urged the court to partition Lot 41 in the manner just described. Johnson argued that the 1976 Deed established a joint tenancy in Lot 41 between Lowe and Johnson. Johnson characterized Lowe's 1983 deeds, however, as an impermissible "attempt to transfer the whole property." In this light, Johnson argued that, "[u]nlike a conveyance by a party of his undivided interest in the joint property, the attempted conveyance of the whole property will not effect a severance of the joint tenancy." Consequently, Johnson submitted, Lowe's attempt to convey more of the joint property than she owned was void, so that Johnson took the whole of Lot 41 upon Lowe's death by survivorship.4 Alternatively, if the 1983 conveyances were valid, Johnson submitted a fallback position which she has modified somewhat in this Court and which we shall consider, infra.5 The circuit court concluded that the 1976 Deed was a valid conveyance, and then said:

The first step of this argument is premised on the right, recognized in Maryland, that one joint tenant may unilaterally sever the tenancy. See Alexander v. Boyer, 253 Md. 511, 519, 253 A.2d 359, 364 (1969) ("A joint tenant may convey his interest by deed, and the result is a severance of the joint tenancy and the creation of a tenancy in common between the grantee and the surviving joint tenant or tenants.") (internal quotation marks omitted) (quoting Eder v. Rothamel, 202 Md. 189, 192, 95 A.2d 860, 862 (1953)). See Downing v. Downing, 326 Md. 468, 475, 606 A.2d 208, 211 (1992) (right of survivorship is incident of a joint tenancy). Johnson also argued that the attempt to convey the eastern portion of the lot to MacIntyre was invalid because it failed to comply with local subdivision ordinances. That argument has been abandoned in this Court.
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-5"The court finds, however, that under the [Johnson Deed Lowe] clearly attempted to unilaterally and impermissibly reduce [Johnson's] interest in Lot 41 from an undivided one-half interest as a joint tenant of the entire Lot 41 to a joint tenancy in the western portion of Lot 41 only. Furthermore, the [MacIntyre D]eed attempted to segregate the eastern portion of the parcel as the exclusive property of [Lowe and MacIntyre], again as joint tenants. It is axiomatic that one cannot convey that which is not theirs. Although [Lowe] retained the right, as a joint tenant in Lot 41, to convey her undivided one-half interest in the entire Lot 41 to [MacIntyre] (thereby converting the joint tenancy between [Johnson] and [Lowe] to a tenancy in common between [Johnson] and [MacIntyre]), [Lowe] retained no right to unilaterally convey any specific portion of Lot 41 to any party. Both the [Johnson and MacIntyre D]eeds indicate that [Lowe] attempted to do just that. The court does not believe it appropriate to do so, and thus refuses to speculate as to the intent of [Lowe]. Consequently, the court will not 'rewrite' these deeds or attempt to divine why or to what end [Lowe] executed them." Thus, the circuit court held that the 1983 deeds conveyed no interest in Lot 41, and that Johnson was the sole owner of the whole of Lot 41 as surviving joint tenant under the 1976 Deed. MacIntyre appealed to the Court of Special Appeals where she presented the following questions: "1. Did the Circuit Court err in refusing to ascertain the intent of [Lowe] in executing the March 10, 1983 deeds? "2. Did the Circuit Court err in holding that a transfer by one cotenant of a specific part of the land jointly owned--a conveyance by metes and bounds--is completely invalid and conveys no cognizable interest to the grantee? "3. Did the Circuit Court fail to do equity by failing to apportion the eastern portion of Lot 41 to [MacIntyre]?" MacIntyre argued that the circuit court failed to reach the question of Lowe's intent in executing the MacIntyre Deed only because it erroneously found that the conveyance

-6attempted to do the legally impossible. She submitted that Lowe's "patent purpose was to have [MacIntyre] take 7647 MacArthur Boulevard and [Johnson] take 7653 MacArthur Boulevard in fee simple on her death." Further, MacIntyre stated that she "agrees that [Lowe], as a co-tenant, could not create an interest in a specific portion of Lot 41, so that to the extent that the deeds purported to split Lot 41, they did not in fact do so. However, [MacIntyre] contends that the deed purporting to create a joint tenancy with [MacIntyre] in a specific portion of Lot 41 validly conveyed to [MacIntyre] an undivided interest in Lot 41. [MacIntyre] further submits that, construing the deeds together, equity should accord the effect the grantor intended, which was to convey 7647 MacArthur Boulevard to [MacIntyre]." Finally MacIntyre claimed that the circuit court could partition Lot 41 without prejudice to the rights of Johnson, and that, by failing to do so, the court nullified the 1983 conveyances instead of giving effect to the grantor's intent as would be consistent with equity. In an unreported opinion the Court of Special Appeals vacated and remanded. The court disagreed with the circuit court's determination that "it was impermissible for a cotenant unilaterally to convey his or her interest in property held in joint tenancy to another." Relying on Bowers v. Baltimore Gas & Electric Co., 228 Md. 624, 180 A.2d 878 (1962), discussed infra, the Court of Special Appeals concluded that "one co-tenant may convey his or her portion of a specific part of a larger tract of land to another [party, who becomes a] co-tenant so long as its value does not exceed in value the interest of the conveying co-tenant in the larger tract of land." We granted Johnson's petition for certiorari. Johnson v. MacIntyre, 354 Md. 113, 729 A.2d 404 (1999). It presents the following questions for review:

-7"I. Under Maryland law, can a co-tenant who owns an undivided 1/2 interest in a parcel carve out and validly convey a specific portion, described by metes and bounds, from the parcel? If so, what interest does that co-tenant convey?"

"II

When reviewing a case decided on summary judgment, we must "identify the basis relied upon by a trial court in granting summary judgment because, in the event that [that] basis is erroneous, 'the appellate court will not ordinarily undertake to sustain the judgment by ruling on another ground, not ruled upon by the trial court, if the alternative ground is one as to which the trial court had a discretion to deny summary judgment.'" Three Garden Village Ltd. Partnership v. United States Fidelity & Guar. Co., 318 Md. 98, 107-08, 567 A.2d 85, 89 (1989) (quoting Geisz v. Greater Baltimore Med. Ctr., 313 Md. 301, 314 n.5, 545 A.2d 658, 664 n.5 (1988)). In the instant case, there appears to be but a single ground for the grant of summary judgment, namely, that a joint tenant has no right unilaterally to convey any specific portion of the jointly held land to a third party, and that any such attempted conveyance has no legal effect whatsoever. Johnson defends that position in this Court. If that position does not prevail, Johnson alternatively argues that, following the severance of the joint tenancy between Lowe and Johnson that resulted from the 1983 deeds, the MacIntyre Deed operated only on Lowe's undivided fifty percent interest in the east parcel, with the effect that Johnson continued to hold her undivided fifty percent interest in the east parcel as a tenant in common with a joint tenancy between Lowe and MacIntyre in Lowe's former fifty percent interest in the east parcel. Similarly, under Johnson's alternative submission, the Johnson Deed operated only on Lowe's undivided fifty percent interest in

-8the west parcel, with the effect that Johnson continued to hold her undivided fifty percent interest in the west parcel as a tenant in common with a joint tenancy between Lowe and Johnson in Lowe's former fifty percent interest in the west parcel. In this Court, MacIntyre supports the judgment of the Court of Special Appeals and further argues that she should be allotted the east parcel, in kind, so long as that allotment does not exceed the value of Lowe's undivided one-half interest in the whole of Lot 41.

I Johnson's argument that she takes all of Lot 41 by survivorship under the 1976 Deed is premised on the legal conclusion that the MacIntyre Deed is a complete nullity, insofar as the non-consenting cotenant, Johnson, is concerned. That is not the law. The rule for which Johnson contends is an extreme extension of a common law rule that had it origins in, and is limited to, partitions in kind. "The major problem that arises in conveyances by cotenants is where the grantor-tenant attempts to transfer his separate interest in a portion of the common property by metes and bounds. The general principle is that such a conveyance will not be given effect in so far as it interferes with [the grantor's] cotenant's right of partition." 2 American Law of Property

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