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Illinois Supreme Court - 473 N.E.2d 930, 105 Ill. 2d 215
Tags: Property, Joint tenancy, Mortgages, Unity of title
tl;dr:
A mortgage does not destroy the unity of a title held in common by two joint tenants of a piece of property.Video Summary
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The plaintiff filed a complaint to quiet title and for declaratory judgment in the circuit court of Greene County regarding a property he owned jointly with his brother. The defendant challenged the plaintiff's claim of ownership and asked the court to recognize his interest as a tenant in common, subject to a mortgage lien. The lower court erred in not addressing the effect of the mortgage on the joint tenancy and whether it survived his death as a lien against the property. The appellate court reversed the trial court's decision, finding that the mortgage did not sever the joint tenancy, and therefore, the surviving joint tenant, the plaintiff, owned the property in its entirety without the mortgage lien. The court considered the effect of a mortgage executed by less than all joint tenants on the joint tenancy and found that the destruction of any of the four unities of interest, title, time, and possession by one joint tenant will sever the joint tenancy. The court also found that levies made under execution on the debtor joint tenant's interest did not have the effect of divesting title and destroying the unity of interest or any other unity necessary to sever and destroy the joint tenancy estate. The defendants filed a petition for leave to appeal, raising two issues: whether a joint tenancy is severed when less than all joint tenants mortgage their interest in the property and whether such a mortgage survives the death of the mortgagor as a lien on the property.
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