FILED: July 11, 2001

BEVERLY G. HILTERBRAND;
DURENE A. CANTRELL;
and C. KENNETH CANTRELL,

Respondents,

v.

DENIS CARTER;
NEIL D. STANFIELD; SHAWN CARTER;
TONY CARTER; BOB GREEN; ROBIN CARROLL;
and JOEY E. CARTER,

Appellants,

and

MATTHEW STANFIELD;
PETER STANFIELD; STEPHEN STANFIELD;
GLORIA WEBER; CALVIN STANFIELD,
as substituted by VONDA STANFIELD;
and JOHN YORK,
as trustee of R. Irene Stanfield Trust
and as personal representative of the
Estate of R. Irene Stanfield, deceased,

Defendants.

Appeal from Circuit Court, Josephine County.

Ronald D. Grensky, Judge pro tempore.

Argued and submitted December 4, 2000.

Christopher L. Cauble argued the cause for appellants Shawn Carter, Tony Carter, Bob Green, Robin Carroll and Joey E. Carter. Clayton Patrick argued the cause for appellants Denis Carter and Neil D. Stanfield. With them on the brief were R. Daniel Simcoe and Schultz, Salisbury, Cauble & Dole.

Frank C. Rote, III, argued the cause for respondents. With him on the brief was Brown, Hughes, Bird & Rote.

Before Edmonds, Presiding Judge, and Armstrong and Kistler, Judges.

KISTLER, J.

Affirmed.

KISTLER, J.

Plaintiffs brought this action to determine their interest in real property. The trial court held that plaintiffs' action was timely, that the grantor had conveyed her land to herself and plaintiffs as joint tenants with the right of survivorship, and that the grantor could not later unilaterally revoke the contingent remainder that she had given plaintiffs. Defendants appeal. We affirm.

This case arises out of a dispute over a parcel of real property that Irene Stanfield (mother) owned and operated as a mobile home park. In 1976, two of mother's children, Beverly Holbrook and Durene Cantrell, and their spouses (plaintiffs) moved onto the park to help mother operate it. In 1978, mother executed a deed in which she conveyed her interest in the property to herself and plaintiffs as joint tenants with the right of survivorship. The deed, which was properly recorded with the county clerk's office, provided that mother would own the property

"in joint tenancy with Tommy J. & Beverly G. Holbrook and C. Kenneth & Durene A. Cantrell * * * not as tenants in common but with the right of survivorship * * *.

"* * * * *

"* * * [T]he grantees herein do not take title in common but with the right of survivorship, that is, that the fee shall vest absolutely in the survivor of the grantees."

In 1983, mother recorded a document entitled "Correction Deed," which purported to "correct that certain Deed executed between the parties on April 12, 1978, * * * clarifying the interest that each of the parties is to receive herein." It provided:

"[Mother], hereinafter called grantor, for the consideration hereinafter stated, does hereby grant, bargain, sell and convey [the property] unto Tommy J. Holbrook, Beverly G. Holbrook, H&W, [u]ndivided 1/4 interest as tenants by the entirety and C. Kenneth Cantrell, and Durene A. Cantrell, H&W, [u]ndivided 1/4 interest as tenants by the entirety."

Although the correction deed provided that the couples would hold their quarter shares of the property as tenants by the entirety, it did not expressly say whether all of the grantees would hold the whole property as joint tenants with the right of survivorship or as tenants in common. (1) Plaintiffs did not sign the 1983 deed but were aware that mother had executed it.

Mother died in 1995, and a dispute over her interest in the property ensued. (2) Because the 1978 deed plainly established a joint tenancy with the right of survivorship, plaintiffs maintained that mother's interest in the property passed directly to them on her death. Other beneficiaries (defendants) claimed that the 1983 deed created tenancies by the entireties as to the two married couples but created a tenancy in common among all of the grantees. Under defendants' theory, mother's share of the property would not pass to plaintiffs pursuant to their right of survivorship under the 1978 deed but would pass to defendants either as beneficiaries of her estate or as beneficiaries of the 1994 trust.

In 1996, plaintiffs brought an action to quiet title and for a declaration of their ownership interest in the property. They argued that, once the 1978 deed was executed and delivered, mother could not unilaterally divest the grantees of the interests that the deed conveyed, including the right of survivorship. At the close of plaintiffs' case, defendants moved for a directed verdict, arguing, among other things, that plaintiffs' claims were barred by laches. More specifically, they asserted that, because the 1983 deed did not expressly mention a type of tenancy or the right of survivorship, it created a tenancy in common by default. See ORS 93.180 (conveyance creates a tenancy in common unless it "clearly and expressly declare[s] * * * that the grantees * * * take the lands with right of survivorship"). Defendants argued that, by waiting until after mother's death (more than twelve years after the second deed was executed), plaintiffs lost their right to challenge the second deed's validity.

The trial court denied defendants' motion and, after considering the parties' evidence, entered judgment in favor of plaintiffs. In a letter opinion, the trial court reasoned that the 1978 deed established mother's intent to create a joint tenancy with the right of survivorship. Once that deed was delivered, mother could not unilaterally revoke it or defeat plaintiffs' survivorship interest. Defendants appealed, raising four assignments of error. We write to address only the issues raised by defendants' first and third assignments--whether mother could unilaterally correct the 1978 deed and whether plaintiffs' action is barred by laches. We affirm without discussion the other rulings that defendants assign as error.

We begin with the question whether mother could unilaterally revoke the contingent remainders created by the 1978 deed. (3) As noted above, the 1978 deed conveyed the property to the grantees in joint tenancy with the right of survivorship, thereby creating "a tenancy in common in the life estate with cross-contingent remainders in the fee simple." ORS 93.180; see Halleck v. Halleck et al, 216 Or 23, 40-41, 337 P2d 330 (1959) (describing the interests as "co-tenants who hold concurrent life estates with contingent remainders"). (4) Once the deed was executed and delivered, the interests conveyed to the grantees vested, including the right of survivorship, see Holbrook v. Holbrook, 240 Or 567, 570-71, 403 P2d 12 (1965); Halleck, 216 Or at 40, and mother could not unilaterally revoke it, see Legler et al. v. Legler, 187 Or 273, 299, 211 P2d 233 (1949). Mother and plaintiffs were thus cotenants, and, as the court held in Halleck, the

"power to defeat the survivorship interest does not extend to co-tenants who hold concurrent life estates with contingent remainders. This contingent remainder which each co-tenant has cannot be defeated by any act of his co-tenant." Halleck, 216 Or at 40-41; see also George W. Thompson, 8 Commentaries on the Modern Law of Property