Harms v. Sprague

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Harms v. Sprague, Court of Appeals ILL, 1988 Does a mortgage severe Joint Tenancy? Issue If not, Does the mortgage survive the death of one of the Joint Tenant? Reasoning Rule
Judgment lien against one joint tenant does not serve to extinguish the joint tenancy. A lien on a joint tenant’s interest will not effectuate a severance of a joint tenancy, absent the conveyance by a deed following the expiration of a redemption period. A mortgage is just a lien; it is not a conveyance. The holder of the mortgage takes only a lien. After foreclosure of a mortgage and until delivery of the master’s deed under the foreclosure2 sale, purchaser acquires no title to the land either legal and equitable. Joint tenancy is not severed when one JT executes a mortgage on his interest in the property, since the unity of title has been preserved. Upon the brother’s death, his interest ceased to exist and along with it the lien of the mortgage. 20-19: Not raised at trial; therefore waived Anyway, a mortgage is not an encumbrance1. A surviving JT succeeds to the share of the deceased JT by virtue of the conveyance not as a successor of the deceased.

PPP and his brother were Joint Tenant on a piece of land.

The title held by the mortgagee was for the limited purpose of protecting his interests. The title of the mortgagee is anomalous, and exists only between him and the mortgagor.

During his lifetime, plaintiff's brother mortgaged his interest in the property to defendants. Upon his brother's death, plaintiff brought an action against defendants to quiet title.

Held Procedure P argues D argues

Right of survivorship became operative upon the brother’s death. Affirmed.

20-19  ‘takes property subject to encumberance’

1 2

What’s an incumberance? What is the effect of foreclosure?

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