164 Cal. App. 2d 591, 330 P.2d 858
The appellant, Elaine R. Wilson, hereinafter called “Elaine,” and Calvert S. Wilson, hereinafter called “Calvert,” were husband and wife. On April 10, 1950, they acquired the real property in question as joint tenants and the record title remained in them as joint tenants until the death of Calvert.1
In July 1954 Elaine and Calvert separated. In October 11, 1954, Calvert executed his promissory note to his parents, the respondents, Frank H. and Alice B. Wilson, hereinafter called “respondents.” This note was in the sum of $6,440. At the same time he executed and delivered to respondents a mortgage upon the real property in question. Elaine did not have knowledge of or give her consent to the execution of this mortgage.2
On June 23, 1955, Calvert died. On May 8, 1956, the People of the State of California commenced an action to condemn the subject real property. By its complaint the condemner alleged that Elaine R. Wilson was the owner of the subject real property and that respondents were mortgagees thereof.3
By her answer Elaine alleged that she was the owner of the property, that respondents had no right, title or interest therein. Respondents by their answer alleged that they were the owners and holders of the mortgage executed by Calvert and prayed that the mortgage be satisfied from the proceeds of the condemnation award. By agreement the fair market value of the property was fixed at $13,800 and that amount together with interest was paid into court by the condemner.4
Thereafter trial was had as to the rights and interests of Elaine and the respondents. No formal findings were made by the court. By a memorandum ruling the court found that there was owing to respondents the sum of $6,440 upon the promissory note executed by Calvert and secured by the aforesaid mortgage. The court ordered that sum plus interest disbursed to respondents out of 50 per cent of the funds remaining in the hands of the trustee (the county clerk). This was after the payment of liens which were concededly a charge upon the joint estate. Judgment was entered accordingly. This resulted in distribution of 50 per cent of said balance to respondents as the amount found due them was in excess of one-half of the balance remaining after the payment of other liens.5
Whether a mortgage upon real property executed by one of two joint tenants is enforceable after the death of that joint tenant?6
Under California law, a mortgage is but a hypothecation of the property mortgaged. It creates but a charge or lien upon the property hypothecated without the necessity of a change of possession and without any right of possession in the mortgagee. It does not operate to pass the legal title to the mortgagee. (Civ. Code, § 2920.)7 In order that a joint tenancy may exist four unities are required: unity of interest, unity of title, unity of time and unity of possession.8 So long as these unities exist the right of survivorship is an incident of the tenancy. Upon the death of one joint tenant the survivor becomes the sole owner in fee by right of survivorship. No interest in the property passes to the heirs, devisees or personal representatives of the joint tenant first to die.9 A mortgage by one joint tenant does not destroy any of the unities and therefore the estate in joint tenancy is not severed.10
No. The facts establish that Elaine and Calvert acquired the property as joint tenants in 1950 and maintained that status until Calvert's death in 1955. Calvert's execution of the mortgage in 1954 created only a lien on his interest without transferring title or possession, leaving all four unities intact. Upon Calvert's death, his interest ceased to exist by operation of the right of survivorship, causing the attached mortgage lien to terminate as well. Consequently, the respondents' mortgage is not enforceable against the condemnation award, which belongs entirely to Elaine as the surviving joint tenant.11
The mortgage upon real property executed by one of two joint tenants is not enforceable after the death of that joint tenant.12