A Short & Happy Guide to Conquering the MBE by Don L. Doernberg & Cynthia A Pope

Author:Don L. Doernberg & Cynthia A Pope
Language: eng
Format: epub
ISBN: 9781647088378
Publisher: West Academic Publishing
Published: 2021-10-15T00:00:00+00:00

Property

1.A and B purchased an apartment together as joint tenants with right of survivorship. They recorded the properly executed deed promptly. Several months later, A executed a deed for the apartment to C, forging B’s name. C promptly recorded the deed. To whom does the apartment now belong?40

A.A and B as joint tenants with right of survivorship.

True or false: It still belongs to A and B as joint tenants with right of survivorship?

This alternative really says that no joint tenant acting unilaterally can affect title to property that is held in joint tenancy. At common law, that was true. Traditionally, a forged instrument was null. However, the modern rule recognizes “partial validity,” where one party can convey the party’s own interest. In this case, A could convey A’s interest to C but could not convey B’s interest. That means that A and B are no longer joint tenants. More than that, the conveyance destroys the joint tenancy, because joint tenancies must arise from a single transaction; the tenants cannot acquire their titles sequentially. This is not a candidate answer.

B.C and B as joint tenants with right of survivorship.

True or false: It belongs to C and B as joint tenants with right of survivorship?

This may be an appealing answer because one is apt to think that A has simply substituted C in A’s place. Logically, that makes some sense. But, as Justice Holmes warned us long ago, “The life of the law has not been logic: it has been experience.” This is not a candidate answer because the partial conveyance severed the joint tenancy and created a tenancy-in-common in its place. Joint 99

tenancies must arise at the same time from the same instrument; C’s and B’s tenancies meet neither of these requirements.

C.C and B as tenants in common.

True or false: The apartment belongs to C and B as tenants in common?

This is a correct answer under the modern rule. A’s conveyance of A’s interest to C is valid. Obviously, A’s fraudulent attempt to convey B’s interest is not valid. So B and C now own the property. But how do they hold it? They cannot be joint tenants because their interests did not arise at the same time through a single conveyance. They cannot be tenants by the entirety for two reasons. First, as far as we know, they are not married, and that is a bit of a problem. (Being married is also sometimes a bit of a problem, but we digress.) Even if they got married after A and B divorced or A died, there would still be no tenancy by the entirety because their interests vested at different times through different instruments.

D.C in fee simple.

This is not a candidate answer under either the modern or the common-law rule. A could not transfer B’s interest without B’s consent, so A could not convey fee simple. Under the common-law approach, the instrument purporting to transfer title to C would have no effect whatsoever; A and B would remain joint tenants.41

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