Rel: April 7, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern

Reporter . Readers are requested to notify the Reporter of Decisions , Alabama Appellate Courts,

300 Dexter Avenue, Montgomery, Alabama 36104

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- 06 50 ), of any typographical or other

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.



# SUPREME COURT OF ALABAMA

OCTOBER TERM, 2022

- 2023

______________________ ___

SC

- 2022

- 0478

_________________________

Carol N. Upchurch, individually and as executor of the Estate of

Michael W. Upchurch, deceased

v.

David Upchurch and Jason Upchurch

Appeal from Talladega Circuit Court

( CV

- 20

- 900314 )

COOK, Justice

.

Michael W. Upchurch, his brother David Upchurch, and his nephewSC

- 2022

- 0478

2 Jason Upchurch owned several pieces of real property as joint tenants

with the right of survivorship. They signed a contract to sell the

properties to third part ies . However, before closing, Michael died . In

this declaratory

- judgment action, Michael's widow Carol N. Upchurch,

individually and as the execut or of Michael's estate, assert ed , among

other things, a claim to one

- third of the proceeds from that sale. David

and Jason filed a motion for a summary judgment

, which the Talladega

Circuit Court granted. W e hold that, under the circumstances

, Michael,

David, and Jason's decision to enter into a contract to sell the properties

severed their joint tenancy and that , as a result, Michael's e state is

entitled to o ne

- third of the proceeds from the sale of properties. We

therefore reverse the trial court's judgment and remand the cause for the

entry of a judgment consistent with this opinion.

Facts and Procedural History

By virtue of three separate deeds, Michael, David, and Jason

acquired several piece s of real property in Talladega ( " the Talladega

propert ies ")

, upon which Michael and Jason operated a business known

as Talladega Cycle Sales, Inc. All three deeds expressly stated that the

three men held the Talladega propert ies "for and during their joint lives,SC

- 2022

- 0478

3 and upon the death of either of them, then to the survivor of them, in fee

simple, togethe r with every contingent remainder and right of reversion."

Several years after Michael, David, and Jason obtained the

Talladega properties , Michael married Carol. No adjustments were made

to the deeds in light of Michael's marriage to Carol.

On March 13, 2020, Michael, David, and Jason entered into a real

estate sales contract ( " the land sale contract") to sell the Talladega

propert ies to John Crawford and Matthew Crawford

. 1 At the time, it was

a greed that Michael, David, and Jason would receive $5,000 a s

consideration

, to be paid upon execution of the contract

-- i.e., before

closing. The land sale contract stated , in pertinent part :

" The parties agree the closing of this transaction shall take

place on or before 5

- 13

- 2020. Purchasers shall not be entitl ed

to possession of said property prior to closing. Purchasers

further understand and agree Sellers shall be allowed to

continue to advertise the real estate for sale and make the

property available for inspection by other prospective

purchasers until this transaction is closed and in the event

this transaction is not closed on or before 5

- 13

- 2020 the

Sellers shall be free to enter into a [sic] agreement to sell said

property to another party . In that event, Purchasers ' earnest

money shall be refunded to them and Purchasers will execute

1 There was also a second contract

, pursuant to which Michael and

Jason agreed to sell Talladega Cycle Sales, Inc., to the Crawford s

. Although the proceeds from that sale were also a subject of the litigation

below, they are not at issue in this appeal.SC

- 2022

- 0478

4 a cancellation of this agreement."

(Emphasis added.) The land sale contract did not mention the joint

tenancy between Michael, David, and Jason

.

On April 30, 2020, less than a month bef ore the parties to the land

sale contract were set to close on the sale of the Talladega proper ties

,

Michael died. Michael's will was admitted to probate

, and Carol was

named execut or of his estate.

On September 4, 2020, Carol, individually and as the execut or of

Michael's estate, filed a declaratory

- judgment action against David and

Jason , alleging, among other things, that Michael's estate was owed one

third of any proceeds obtained from the sale of the Talladega properties

.

According to Carol, when M ichael, David, and Jason entered into the land

sale contract with the Crawford s , their joint tenancy with the right of

survivorship was severed and the y became tenants in common. As a

result, Caro l contended

, Michael's estate was entitled to a pro rata sha re

of the proceeds obtained from the sale of the Talladega propert ies

, and

she asked the trial court to enter an order "directing that all proceeds

from the sale of the [ Talladega properties ] ... be paid to the Clerk of this

Court pending further orders of t his Court."SC

- 2022

- 0478

5 That same day, the trial c ourt granted that request in part and

ordered the closing attorney to pay one

- third of the net proceeds from the

sale of the Talladega properties

-- or $84,422.25

-- to the c lerk of the trial

court once the sale was c ompleted

.

On September 16, 2020, the sale of the Talladega propert ies was

finalized; David and Jason each received checks for one

- third of the

proceeds

, totaling $84,422.24 each. A check for Michael's one

- third

interest was then deposited with the trial

- court clerk.

Following additional filings and proceedings, each side filed a

motion for summary judgment. In their joint summary

- judgment motion

,

David and Jason argued that the deeds granting Michael, David, and

Jason each a one

- third ownership interest in the Talladega propert ies

specifically stated that the y owned the propert ies "for and during their

joint lives

, and upon the dea th of either of them, then to the survivor of

them

, in fee simple" and that the execution of the land sale contract did

not work to sever th e joint tenancy with the right of survivorship created

by the deeds . In support of their motion, David and Jason attached copies

of the th ree deeds related to the Talladega properties

.

In her summary

- judgment motion , Carol argued that the executionSC

- 2022

- 0478

6 of the land sale contract acted to sever Michael, David, and Jason's joint

tenancy with the right of survivorship and converted their interests into

a joint tenancy in common. Accordingly

, she argued that one

- third of the

proceeds from the sale of the Talladega propert ies was required to be paid

to Michael's estate

. In support of her motion, Carol attached, among other

things, copies of the three deeds and the land sale contract.

On November 1, 2021, the trial court held a hearing on the motions

for a summary judgment. About a month later, the trial court entered a

judgment granting David and Jason's summary

- judgment motion and

denying Carol's su mmary

- judgment motion. Shortly thereafter, Carol

filed a postjudgment motion to alter, amend, or vacate the trial court's

judgment

, which was subsequently denied. Carol then filed a timely

notice of appeal

.

Standard of Review

" ' "This Court's review of a summary

judgment is de novo. Williams v. State Farm Mut.

Auto. Ins. Co. , 886 So. 2d 72, 74 (Ala. 2003). We

apply the same standard of review as the trial

court applied. Specifically, we must determine

whether the movant has mad e a prima facie

showing that no genuine issue of material fact

exists and that the movant is entitled to a

judgment as a matter of law. Rule 56(c), Ala. R.

Civ. P.; Blue Cross & Blue Shield of Alabama v.SC

- 2022

- 0478

7 Hodurski , 899 So. 2d 949, 952

- 53 (Ala. 2004). In

m aking such a determination, we must review the

evidence in the light most favorable to the

non movant. Wilson v. Brown , 496 So. 2d 756, 758

(Ala. 1986). Once the movant makes a prima facie

showing that there is no genuine issue of material

fact, the burde n then shifts to the nonmovant to

produce ' su bstantial evidence' as to the existence

of a genuine issue of material fact. Bass v.

SouthTrust Bank of Baldwin County , 538 So. 2d

794, 797

- 98 (Ala. 1989); Ala. Code 1975, § 12

- 21

- 12. '[S]ubstantial evidence is evidence of such

weight and quality that fair

- minded persons in the

exercise of impartial judgment can reasonably

infer the existence of the fact sought to be proved.'

West v. Founders Life Assur. Co. of Fla. , 547 So.

2d 870, 871 (Ala. 1989). " '

" Prince v. Poole , 935 So. 2d 431, 442 (Ala. 2006) (quoting Dow

v. Alabama Democratic Party , 897 So. 2d 1035, 1038

- 39 (Ala.

2004))."

Brown v. W.P. Media, Inc. , 17 So. 3d 1167, 1169 (Ala. 2009).

Discussion

On appeal, Carol maintain s that the execution of the land sale

contract acted to sever Michael, David, and Jason's joint tenancy with

the right of survivorship and converted their interests into a tenancy in

common. Accordingly, she argue s that one

- third of the proceeds from the

sale of the Talladega propert ies is required to be paid to Michael's estate

for distribution to his heirs. David and Jason contend, however, that,SC

- 2022

- 0478

8 because the language of the land sale contract did not manifest an intent

to sever the joint tenancy with the right of survivorship and becaus e

there is no evidence that either of them attempted to unilaterally destroy

the joint tenancy before Michael's death, they

-- as the remaining

survivors of the joint tenancy

-- are the ones who are entitled to the

disputed one

- third of the proceeds.

Section 35

- 4

- 7, Ala. Code 1975, addresses survivorship between

joint tenants and provides:

" When one joint tenant dies before the severance, his

interest does not survive to the other joint tenants but

descends and vests as if his interest had been severed and

ascertained; provided, that in the event it is stated in the

instrument creating such t enancy that such tenancy is with

right of survivorship or other words used therein showing

such intention, then, upon the death of one joint tenant, his

interest shall pass to the surviving joint tenant or tenants

according to the intent of such instrument . This shall include

those instruments of conveyance in which the grantor conveys

to himself and one or more other persons and in which

instruments it clearly appears that the intent is to create such

a survivorship between joint tenants as is herein

conte mplated. "

This Court has previously explained :

" ' An estate in joint tenancy is one held by

two or more persons jointly, with equal rights to

share in its enjoyment during their lives, and

having as its distinguishing feature the right of

survivorship. Be cause of this right of survivorship,SC

- 2022

- 0478

9 upon the death of a joint tenant, the entire estate

goes to the survivor or, in the case of more than

two joint tenants, to the survivors, and so on to the

last survivor. The estate passes free and exempt

from all charg es made by the deceased cotenant or

cotenants. '

" 20 Am. Jur. 2d Cotenancy and Joint Ownership § 4 (2015)

(footnotes omitted). "

Ex parte Arvest Bank

, 219 So. 3d 620, 628 (Ala. 2016)

.

However, a joint tenancy with the right of survivorship may be

severed or destroyed by an act of one or more of the tenants that is

inconsistent with the continuation of the joint tenancy. 1 Jesse P. Evans

III, Alabama Property Rights and Remedies § 3.14[d][x] (5th ed. 2012).

Acts inconsistent with the continuation of a joint tenancy with the right

of survivorship include the disruption of any one of the required three

unities

-- title, interest

, and possessio n

-- such as through the sale of the

property for a division of proc eeds

. 2 Id.

2 We note briefly that, at common law, "a joint tenancy could be

created only where the four unities of time, title, interest, and poss ession

were present and the destruction of any of these would terminate the

joint tenancy." Nunn v. Keith

, 289 Ala. 518, 521, 268 So. 2d 792, 794

(1972). However, the purpose and effect of § 35

- 4

- 7 , Ala. Code 1975, and

its predecessors was to eliminate the requirement that one of the four

unities

-- time

-- exist in order to create such an estate; thus, only the

three unities listed above are now required

. See 289 Ala. a t 523, 248 So.

2d at 797

.SC

- 2022

- 0478

10 " ' [W] hen the vendee contracts to buy and the vendor to sell,

though legal title has not yet passed, in equity the vendee

becomes the owner of the land, the vendor of the purchase

money. In equity the vendee has a real interest and the vendor

a personal interest. Equity treats the executory contract as a

conversion, whereby an equitable interest in the land is

secured to the purchaser for whom the vendor holds the legal

title in trust. This is the doctrine of equitable conversion.

" ' By the doctrine of equitable conversion under an

executory contract of sale, the equitable estate, in its entirety,

passes immediately to the purchaser at the moment the

contract becomes effective and the bare legal title for security

purposes remains in t he vendor. The purchaser of the land is

looked on and treated as the owner thereof, and the vendor,

though holding the legal title, holds it as a trustee for the

purchaser, and the vendee holds the purchase money in trust

for the vendor ....' (Footnotes omi tted.)"

Grass v. Ward , 451 So. 2d 803, 805 (Ala. 1984) (quoting 8A G. Thompson,

Commentaries on the Modern Law of Real Property § 4447) (emphasis

added). See also Hudson v. Hudson , 701 So. 2d 13, 15 (Ala. Civ. App.

1997) (recognizing the same).

This Cour t has previously held that

, in Alabama, when all the joint

tenants agree to sell their property to a third party, their joint tenancy

with the right of survivorship is automatically is severed. See Swan v.

Magnusson

, 418 So. 2d 844, 845 (Ala. 1982) (recogn izing that a husband

and wife's sale of their home to a third party "effectively destroyed the

joint ownership with rights of survivorship")

. More recently, t his CourtSC

- 2022

- 0478

11 has explained that an agreement providing for the eventual sale of a piece

of real property evinces an intent to no longer hold the property in joint

tenancy from the effective date of the agreement and

, thus, not only

severs such a joint tenancy but also creates a tenancy in common. See

Fitts v. Stokes

, 841 So. 2d 229, 232 (Ala. 2002) ( holding that the property

settlement between a husband and wife that was incorporated in to their

divorce judgment extinguished their joint tenancy with the right of

survivorship and created a tenancy in common ); Kirven v. Reynolds

, 536

So. 2d 936, 938 (Ala

. 1988) (recognizing that " the parties themselves, or

the court with the parties before it, may terminate the estate, the

termination resulting in the creation of a tenancy in common without a

right of survivorship "); and Watford v. Hale

, 410 So. 2d 885, 886 (Ala.

1982) (recognizing that a n " ' agreement provid[ing] for the ultimate sale

of the property and the division of the proceeds

... evinces the intent to

no longer hold the property in joint tenancy from the effective date of the

agreem ent ' " ) ( quoting Mann v. Bradley

, 188 Colo. 392, 395, 535 P.2d 213,

215 (1975) ) ). 3

3 As David and Jason note

, there is a split of authority on this issue

nationally

. S ome courts, including those in Alabama

, have adopted the

view that a contract of sale entered into by all the joint tenants with aSC

- 2022

- 0478

12 Carol argue s that, by entering into the land sale contract with the

Crawfords

, Michael, David, and Jason evinced a clear intent to no longer

hold the Talladega properties as joint tenants with the right of

survivorship. In support of th at contention, Carol rel ies on this Court's

decision in Watford

. In that case, a husband and wife acquired title to

certain real property as joint tenants with the right of survivorship. They

later divorced, and their divorce judgment incorporated a property

third party severs or terminates the joint tenancy

, absent evidence to the

contrary

. See, e.g.

, Parker v. Parker

, 434 So. 2d 1361

, 1362 (Miss. 1983)

(holding that a joint tenancy is severed when the parties enter into a valid

contract containing provisions inconsistent with the joint tenancy); and

Kozacik v. Kozacik

, 157 Fla. 597, 602, 26 So. 2d 659

, 662 (1946) (holding

that a contr act of sale is sufficient to terminate a joint tenancy). See also

Smith v. Morton

, 29 Cal. App. 3d 616, 106 Cal. Rptr. 52 (1972); In re

Es tate of Bates

, 492 N.W.2d 704

, 706 (Iowa Ct. App. 1992); Buford v.

Dahlke

, 158 Neb. 39, 44, 62 N.W.2d 252

, 255 (1954); McKissick v.

McKissick

, 93 Nev. 139, 148, 5 60 P.2d 1366

, 1371 (1977); and

Yannopoulos v. Sophos

, 243 Pa. Super. 454, 459, 365 A.2d 1312

, 1314

(1976). Others have concluded that such a contract of sale does not sever

or terminate a joint tenancy or a tenancy by the entirety ab sent

additional evidence of intent to sever

. See, e.g.

, Weise v. Kizer

, 435 So. 2d

381 (Fla. Dist. Ct. App. 1983); Doran v. Nally

, 10 Mass. App. Ct. 8 93

, 409

N.E.2d 1321 (1980); Field v. Field

, 130 Misc. 2d 751, 497 N.Y.S.2d 586

( Sup. Ct. 1985); and Wonka v. Cari

, 249 Wis. 2d 23, 6 37 N.W.2d 92 (Ct.

App. 2001)

. S ee, generally

, Sara L. Johnson, Annotat ion

, Contract of Sale

or Granting of Option to Purchase, to Third Party, by Both or All of Joint

Tenants or Tenants by Entirety As Severing Or Terminating Tenancy

, 39 A.L.R. 4 th 1068 (1985 & Supp. 2018) (collecting cases addressing this

issue from other jurisdi ctions)

.SC

- 2022

- 0478

13 settlement agreement, which stated

, in pertinent part:

" ' (c) The property owned jointly by the parties hereto

and located in Marengo County, Alabama, containing 200

acres more or less, shall be sold upon the agreement of both

parties. The proceeds of any sale of the above real estate shall

be divided equally amo ng said parties. Until such time as the

above property is sold, plaintiff and defendant agree to each

pay one

- half of the mortgage payments to the State Bank of

Sweetwater, Alabama, as the same become due. Each party

also agrees to pay one

- half of any othe r expense relating to

said property, including but not limited to payments for taxes,

insurance, and maintenance of said property. ' "

410 So. 2d at 885. The judgment therefore ordered each party to pay one

half of the mortgage payments and other expenses relating to the

property " ' [ u ] ntil such time as the

... property is sold. ' " Id. Four years

later

, the husband died intestate

, and neither party had taken any action

toward selling the property. The wife initiated a declaratory

- judgment

action against the husband's heirs

- at

- law and next of kin

, claiming that,

as the surviv ing joint tenan t

, she held the property in fee simple. The

defendants claim ed that the divorce judgment incorporating the

property

- settlement agreement had destroyed the joint tenancy with the

right of survivorship and had converted the ownership of the property to

a tenancy in common.

The trial court held that t he husband and wife's intention had beenSC

- 2022

- 0478

14 to " ' divide the property and create a tenancy in common, ' " as indicated

by their property

- settlement agreement that had been made a part of

the ir divorce judgment and that

, therefore, the joint tenancy with the

right of survivorship had terminated. Id. at 886. As a result, the trial

court held that the husband's heirs

- at

- law and next of kin were the lawful

holders of the husband's interest in the property.

This Court, in a per curiam opinion, agreed and held that the

property

- settlement agreement incorporated into the divorce judgment

evidenced an intention to sever the joint tenancy with the right of

survivorship

. This Court explained:

" ' The intent of the parties as shown in the property

settlement a greement is central to the issue presented. This

agreement provided for the ultimate sale of the property and

the division of the proceeds, which evinces the intent to no

longer hold the proper ty in joint tenancy from the effective

date of the agreement. The entire tenor of those provisions of

the agreement pertaining to this property is inconsistent with

any purpose of the parties to continue the right of

survivorship, which is the sine qua non of joint tenancy. ' "

Id. (quoting Mann

, 188 Colo. at 395, 535 P.2d at 215 )

.

According to Carol, the land sale contract in this case, like the

property

- settlement agreement in Watford

, provided for the sale of the

Talladega propert ies and "the payment of the proceeds to the three sellersSC

- 2022

- 0478

15 who executed it 'which evinces the intent to no longer hold the

propert [ ies] in joint tenancy from the effective date of the agreement.' "

Carol's brief at 9 (quoting Watford

, 410 So. 2d at 886). She further

contend s that the " ' entire tenor of [the] provisions of the [land sale

contract] pertaining to [the Talladega ] propert [ ies] is inconsistent with

any purpose of the parties to continue the right of survivorship, which is

the sine qua non of joint tenancy. ' " Carol's brief at 9

- 10 (quoting Watford

,

410 So. 3d at 886

. )

David and Jason contend that Watford is inapplicable because, they

assert, in that case the parties, in contemplation of divorce

, entered into

a property

- settlement agreement that specifically stipulated that the

propert y owned jointly by them with the right of survivorship would be

sold at a later date and that the proceeds would be divided equally

between them. According to David and Jason, the execution of such an

agreement as part of a divorce settlement will sever a joint tenancy with

the right of survivorship between divorcing parties. T hey contend

,

however, that

, by its own terms, the land sale contract in the present case

di d not act as a conveyance but, instead, acted as an agreement to convey

the Talladega propert ies at a later date.SC

- 2022

- 0478

16 In support of their contention, David and Jason point to the fact

that the land sale contract allowed for them and Michael "to continue to

advertise the real estate for sale and make the propert y available for

inspection by other prospective purchasers unt il this transaction is

closed" and also gave them the option to sell the Talladega propert ies to

another purchaser in the event the closing did not occur by May 13

, 2020.

They further point out that, per the terms of the land sale contract,

Michael, David

, and Jason also had no obligation to convey the Talladega

propert ies to the Crawfords if they defaulted.

However, under the legal principles discussed above, by virtue of

entering into the land sale contract with the Crawford s

, Michael, David,

and Jason evinced an intent to sever the joint tenancy between them.

Further, additional evidence support s this conclusion about the intent to

sever. The land sale contract made no mention of maintaining the joint

tenancy with the right of survivorship between Michael, David, and

Jason if any of the events described in the preceding paragraph occurred.

I t would be illogical to conclude that Michael, David, and Jason intended

for their joint tenancy to continue once the land sale contract and the

agreement to sell the business on th e Talladega propert ies were executed

.SC

- 2022

- 0478

17 See note 1, supra

. Moreover, under the land sale contract

, the Crawford s

,

as the purchaser s of the Talladega properties were " ' looked on and

treated as the owner thereof

, ' " with Michael, David, and Jason, as the

"vendors," merely hold ing the propert ies " ' as

... trustee [s] for the

purchaser [s]

. ' " Grass

, 451 So. 2d at 805.

Under these circumstances, the joint tenancy with the right of

survivorship between Michael, David, and Jason was severed and

became a tenancy in common. This Court has stated that the " major

distinction between a tenancy in common and a joint tenancy is that the

interest held by tenants in common is devisab le and descendible, whereas

the interest held by joint tenants passes automatically to the last

survivor ." Porter v. Porter

, 472 So. 2d 630, 632 (Ala. 1985). Having

established that a tenancy in common existed at the time of Michael's

death and at the time the Talladega propert ies were sold, Michael's

e state was entitled to one

- third of the proceeds from the sale

,

representing Michael's interest in the propert ies

.

Conclusion

Because Michael, David, and Jason entered into the land sale

contract for the purpose of selling the Talladega properties

, which theySC

- 2022

- 0478

18 owned as joint tenants with the right of survivorship, the evidence

indicates that they intended to sever their joint tenancy. Therefore

, their

joint tenancy was converted into a tena ncy in common

, thereby entitling

Michael's e state to one

- third of the proceeds from the sale of the

Talladega properties. W e , therefore, reverse the trial court's judgment

granting David and Jason's summary

- judgment motion and denying

Carol's summary

- judgm ent motion, and we remand the cause for the trial

court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED.

Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur.