## Facts

- A married couple, Elaine R. Wilson and Calvert S. Wilson, acquired real property in 1950 as joint tenants and held record title as joint tenants until Calvert’s death.
- The couple separated in 1954.
- Without Elaine’s knowledge or consent, Calvert executed a promissory note to his parents for $6,440 and contemporaneously gave them a mortgage on the jointly held property.
- Calvert died in 1955.
- The State commenced a condemnation action in 1956; the parties stipulated to a $13,800 valuation, which was paid into court.
- Elaine claimed sole ownership and denied the parents had any interest; the parents claimed mortgagee rights and sought payment from the condemnation proceeds.
- The trial court ordered the parents paid the unpaid note amount plus interest from one-half of the remaining condemnation funds (after payment of agreed joint liens).
- Elaine appealed, contending the mortgage did not survive Calvert’s death and could not be enforced against the condemnation award.

## Issues

1. Whether a mortgage executed by one of two joint tenants is enforceable after the mortgagor joint tenant’s death against the surviving joint tenant and the substituted condemnation proceeds.

## Decision

- The Court of Appeal reversed.
- A mortgage by one joint tenant, under California’s lien theory, does not sever the joint tenancy.
- Because the joint tenancy was not severed, survivorship vested full title in Elaine at Calvert’s death.
- The mortgage lien dependent on Calvert’s joint tenancy interest terminated upon his death and was not enforceable against Elaine or the condemnation fund.

## Legal Principles

- In California, a mortgage generally creates a lien and does not transfer legal title or possession.
- A joint tenancy is severed only by destruction of one of the four unities (time, title, interest, possession); creating a lien by mortgage does not, by itself, destroy those unities.
- When a joint tenancy continues until one tenant’s death, the surviving joint tenant becomes sole owner by operation of law, and no interest passes to the deceased tenant’s heirs or creditors through the joint tenancy estate.
- Condemnation proceeds stand in place of the condemned property for allocating interests; if survivorship made the survivor sole owner before the taking, the proceeds are owned accordingly.
- A mortgagee taking a mortgage from only one joint tenant bears the risk that the mortgagor’s death before enforcement will terminate the lien as against the surviving joint tenant.

## Conclusion

The court held that, because a unilateral mortgage by one joint tenant in California does not sever the joint tenancy, the mortgage lien ended at the mortgagor’s death and could not be satisfied from condemnation proceeds owned solely by the surviving joint tenant.


People v. Nogarr, 164 Cal. App. 2d 591 (Cal. Ct. App. 1958)