Van Antwerp v. Horan

Supreme Court of Illinois · Property

PropertyJoint tenancyExecution levySeverancejoint tenancyseveranceexecutionlevy

Facts

A judgment was entered in 1941 against Frank Ormond, and execution issued; a levy was then made on Frank's interest in real estate he held in joint tenancy with his wife, Eva M. Ormond. Frank died in 1942 before any execution sale occurred. In 1944, Eva conveyed the property to Bertha G. Van Antwerp, who took possession, while the judgment was assigned to Harry L. Peters, who sought to proceed with sale under the earlier levy. The defendants argued that the levy itself had severed the joint tenancy, making Frank's interest separately saleable.

Issue

Does a levy made under execution upon the share or interest of one joint tenant sever or terminate the joint tenancy before a final sale? More specifically, does such a levy destroy one of the four unities, particularly unity of interest, under Illinois law?

Rule

A joint tenancy is severed only by destruction of one or more of the four unities: interest, title, time, and possession. In Illinois, although a joint tenant's interest is subject to levy and sale on execution, a levy on one joint tenant's real estate interest does not itself sever the joint tenancy because it gives the judgment creditor no greater interest than the preexisting judgment lien, does not divest title, and does not disturb possession before sale.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Peoria, Illinois, Nolan Price and Serena Price own a duplex as joint tenants. A creditor obtains a money judgment against Nolan and records a levy under execution on Nolan’s interest, but no sheriff’s sale occurs before Nolan dies.

What is the strongest argument about the effect of the levy on the joint tenancy under Illinois law?

Explanation. Under the majority rule, a joint tenancy is severed only by destruction of one of the four unities. In Illinois, a levy on real estate is only a step toward sale and gives the creditor no greater interest than the existing judgment lien; before sale it does not divest title or interfere with possession. Because no unity was destroyed before Nolan’s death, the levy alone did not sever the joint tenancy. (Derived from Van Antwerp v. Horan (n.d.).)