113 P.2d 918 | Nev. | 1943
The following facts appear:
One Harris and wife had executed their promissory note for $12,500 to the order of William J. Dawe or Sue A. Hazell Newitt, and as security for this note, Harris and his wife executed their mortgage to William J. Dawe and Sue A. Hazell Newitt. William J. Dawe died, and Clarence E. Dawe was appointed executor of his estate. The executor came into possession of the note and mortgage. Mrs. Newitt made demand for the possession of the note and mortgage. This was refused, and she commenced suit against the executor, claiming that by reason of Dawe's death she, as surviving joint obligee, became the owner of the paper. Her complaint alleged ownership. The deceased's executor admitted all of the allegation of the complaint except the allegation of ownership, and alleged the estate's ownership of a one-half interest in the note and mortgage.
1. Prior to the 1939 act the statutory modification of the common-law rule as to the creation of joint tenancy related to real property only. Sec. 1513, vol. 1, Nevada Compiled Laws 1929. The act of 1939 makes specific reference to personal property in the following words: "Joint tenancy in personal property may be created by a written transfer, agreement, or instrument." It is the contention of appellant that the statute quoted supra has no reference to instruments running in favor of joint obligees, and that the rule in this state is as laid down in the case of Ehrlich v. Mulligan,
2. Choses in action are personal property (42 Am. Jur. p. 207, par. 26; 50 C.J. p. 763, par. 38), and are included within the term "personal property" as used in the 1939 statute, quoted supra. It has been held that notes and mortgages are considered as personal property under statutes abolishing joint tenancy. Hay v. Bennett,
3. Hence the chose in action represented by the note and mortgage in this case, being personal property and coming within the provisions of chapter 21 of the Laws of 1939, in order for a joint tenancy to exist therein the instruments must so provide.
In further substantiation of the construction we have placed on the words "personal property" as used in our statute, we quote the following from Schouler on Personal Property (5th ed.), p. 226, note 3: "The modern *476 rule of equity is certainly to defeat a joint tenancy wherever it is possible; and in this country the incident of survivorship is destroyed by statute almost entirely, except in the cases of legacies or devises and where persons are appointed co-executors, or co-trustees, or co-guardians, or when one expressly creates the incident."
The note executed by Harris and wife, insofar as it is material here, reads: "For value received, we, jointly and severally promise to pay to the order of W.J. Dawe or Sue A. Hazell Newitt, in Elko, Nevada, or wherever payment shall be demanded in the State of Nevada, or elsewhere, at the option of the holder hereof, the sum of Twelve Thousand Five Hundred and no/100 Dollars ($12,500.00)."
The pertinent part of the mortgage to secure said note reads: "This Mortgage made the 1st day of January, A.D. 1940, between R.L. Harris and Effie Harris, his wife, both of the City and County of Elko, State of Nevada, the parties of the first part, mortgagors, and W.J. Dawe of the City and County of Elko, State of Nevada, and Sue A. Hazell Newitt, of Kansas City, State of Kansas, the parties of the second part, mortgagees, * * *."
4. From a consideration of the quoted portions of said instruments we find no basis for a holding that a joint ownership is intended, and, failing that, the holders of the note are tenants in common.
Certain proceedings were had in this court in this case on a previous occasion. In State ex rel. Newitt v. District Court,
While it may be true that appellant was denied the opportunity of having her demurrer to the answer heard, and also denied the right to reply to affirmative matter in the answer, by reason of an alleged premature entry of judgment on the pleadings in favor of defendant in the lower court, yet a granting of the privilege to appellant to exercise such rights at this time would be of no avail — this court will not grant permission to, and appellant does not ask the privilege of performing a useless act.
The existence or nonexistence of a joint ownership must be ascertained from the instruments in question. If it does not affirmatively appear there, then such an intention could not be supplied by pleading it in a reply to the answer, as suggested by appellant. "If the presumption of joint ownership in a promissory note should attach, it is overcome, so as to destroy any right to survivorship, when it appears in proof that the deceased was the owner of a half interest in the note and a mortgage given as security for it." 7 Cal. Jur. p. 341, note 6.
Respondent in his answer plead ownership of a one-half interest in the note and mortgage by the deceased William J. Dawe in his lifetime. We understand appellant does not question the correctness of this allegation.
Appellant has asked that the main question be determined by this court so that future appeals would not be *478 necessary, and that the litigation be brought to an end. We think such a position is the correct one, and therefore sustain the judgment.
It is so ordered.