WEBVTT
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SJC 1 3 4 2 9
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Kathleen M. Cerone, and another V J&K Furnace
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And Attorney Williams, Whenever you're ready.
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Good morning, And may it please the court.
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I am Thalia Williams.
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I represent the appellant in this matter and
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I'm joined by my co-counsel, Jesse Belcher Tammy.
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This is a, a fairly simple case in the sense
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that the narrow issue that needs to be resolved
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by this court is whether or not a severance
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of a joint tenancy took place by operation
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of a decree is simply incorporated
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a party's agreement. It is my client's position
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that that of course has not taken place.
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Joint tenancy is such a significant property
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right, and it is required to be created expressly
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and in writing in an instrument.
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So it would follow that in order
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to waive that right that waiver would
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also need to be expressed. This was a situation
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where there was a partition case.
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Yes, there is a Compromise Agreement,
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but the Compromise Agreement is completely silent
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as to how this property will continue to be held.
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The agreement is silent as to whether or not
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this benefits heirs, successors and assigns
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if somebody were to pass away.
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It does not state that there's any change
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in the way that the parties are
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holding this property and it simply just
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contemplates a future sale. Yes.
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With some parameters, but...
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But doesn't, I mean, the appeals court decision
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which is detailed, talks about possession, right?
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That you're,
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there's no longer possession... Right?
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Right. But I...
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The person clears out.
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Your Honor, I think that there's a very clear
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distinction between legal possession and
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physical possession, in this matter.
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This man had vacated in advance of them
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ever entering into this agreement that
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is reflected in his affidavit of objections.
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It was a matter of him returning to remove some property.
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Isn't The physical possession con, sort of converted it?
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It, it, it, it takes on a legal...
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Um, it becomes legal possession when you enter
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into agreement on that, doesn't it?
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I would disagree, your Honor.
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It doesn't state that he can never return.
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And although I understand that you can't,
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dis-, that you can't credit my clients.
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It's not, the issue is not whether he never returns.
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It's whether he has the right to possession,
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the same Right of possession, right?
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And I would argue that legally he does.
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But what's the basis for that?
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That he has simply just vacated the property.
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But no, he's entered into an agreement
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that legally obligates him to leave.
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But it doesn't indicate that he can
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never return, and it does not indicate
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that the ownership has, in any way, been changed.
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If you think about it in the context of
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let's say a separation agreement,
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somebody might move out in the interim,
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while a divorce is pending. They might be
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joint tenants and by them moving out
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they might even enter into a temporary agreement
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that that person could never return.
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But that doesn't necessarily change
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their legal ownership of that property,
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and ownership of that possession.
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And in a divorce context...
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This was the resolution of a petition for partition.
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Yes.
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And they both agreed to this deal,
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and that deal was codified through the decree.
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Correct.
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And so that ended the petition for partition, right?
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I don't think, it did not entirely.
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If you follow the way the partition statutes
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work, in order for something to operate
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as a partition decision it has things that
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have to be in there. There is an example
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in the record of that, but one of the main
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examples...
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What if they had never, your client,
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had never petitioned for partition?
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They would still...
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And instead had agreed to the settlement agreement?
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I guess I'm misunderstanding the question.
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So she did.
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Yes you are. So here's the question.
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The question is, what if I'm, I'm a joint tenant.
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Yep.
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Right? And I no longer wanna be a joint tenant.
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Just like your client didn't wanna be a
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joint tenant and instead of needing to file
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a court action, I say, Hey dear joint tenant,
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I no longer wanna own this with you.
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Let's enter into an agreement.
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Well, as long as there were writing that
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was recorded...
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Like a settlement agreement?
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I, I'm not sure that a settlement agreement
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is enough, but one joint tent...
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Was it in writing?
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The settlement agreement? Yes. But it does not
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So what, what about it was deficient?
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There's no reference within the agreement.
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The four corners of the agreement as
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to how it's held, and it's already been
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acknowledged that it's held as joint tenancies,
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'cause that's part of the initiating process.
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There's nothing in the agreement that talks
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about that changing. This isn't similar to
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a divorce where we know we have a law
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that once the "NISI' period ex, you know
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it automatically switches to ten
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tenancy in common. That's not the circumstance
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that's here. They entered into this deed,
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everybody agrees, time and title is not an issue.
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Yes. They entered this as joint tenancies.
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Now we're at a situation where that
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has never been changed in writing.
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They agreed to certain things to avoid the rest
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of the lawsuit, to avoid the appointment
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of a commissioner and to avoid that sale process.
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And to terminate the petition for partition...
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But it didn't terminate their individual
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property rights and, and when...
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But, but, but why?
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I mean you say that, and that's the key question.
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Yes.
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But why?
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It's missing, because it's missing
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too many things, and that's, partial,
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Part of that comes from the partition statutes.
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When you have a partition judgment
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it says you need to have these things
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for it to be sufficient. One of those
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things is a holding or a finding
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of how, the nature of how these people
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own this property. There's a case for,
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I couldn't tell you the name off not my head,
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but for example, there's a case that
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held that that decree over here,
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even though it said it was tenants in common
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and the petition said it was joint tenants,
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you're stuck with what came out over here.
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This document is silent as to those issues.
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There's nothing in that document that says we're
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changing the joint tenancy. There's nothing
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that would've informed Jane, who was "pro se"
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at the time, that those rights were
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gonna be changed. There's the intention
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could have been because it's not in
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there that they wanted it to remain
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as a joint tenancy with rights of survivorship.
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So what this really comes down to in this decree...
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What, what about the agreement gives rise
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to that interpretation?
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I'm sorry?
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Did they, what about the agreement
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gives rise to the interpretation
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that they wanted to maintain it as joint tenants?
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It is not expressly waived.
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So it's the silence in the agreement.
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The silence in the agreement. There is
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also no affirmative statements that say
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that this is going to benefit
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their heirs, successors, and assigns.
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It is just between the individuals.
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I think we'd be in a very different
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circumstance right now if it said
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we are gonna treat this, going forward,
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as if we're tenants in common or
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I want these rights to go through my estate.
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So again, it's the silence.
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I'm sorry.
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You're standing on the silence in the agreement
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Correct.
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As to how they're gonna hold it in the future.
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Correct. And since this is such a
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significant property right that you
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cannot create unless it's absolutely expressed.
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Can you determinate it, unless it's absolutely expressed?
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You can terminate it by alienation.
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Okay.
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Which in this case, there was
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no other alienation. There was just the decree.
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Neither party had taken their interest
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and deeded it out to anybody else or
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done anything under the law that
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would have been deemed a different conveyance
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or alienation. And we know from
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the recent holding in battle, that conveyancing
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is the point in time where the severance occurs.
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For which unity?
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Time, title, possession?
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For all of them essentially.
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So you read battle to apply to
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all four unities?
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Yeah. I think that at a time of
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a conveyance all, all of the unities are gone
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because the, the interest is completely
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extinguished. In, in this case, un-
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unless it was severed, Jane owns this
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property outright 'cause it fully vested
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in her the moment that Mr. Cerrone passed away.
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So it really comes down to...
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Right, at the beginning of that question is
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what's before us, is if it was
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not severed, the question is does
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the settlement agreement sever it?
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And your position is no, because it's silent?
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Because it's silent as to these issues.
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I also think that it doesn't even meet the normal
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basic requirements of a settlement agreement.
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Even if you were to just purely remove it
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from the partition realm...
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What are those basic requirements
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of the settlement agreement? I'm not aware.
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Very clear material terms that have finality
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and then everybody can move on.
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This wasn't the type of agreement
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where everything was done. There was
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a two year period of time where there
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could be a refinancing and other
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things could come up. There aren't terms
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requiring her to sell. If you read that
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just on the four corners, her only obligation
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is to list the property for sale.
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It may imply or contemplate a future sale
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but it doesn't require it
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it doesn't even include parameters as
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to when an offer needs to be accepted.
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So, arguably, she could be in compliance
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with this by listing it, in perpetuity, and
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never agreeing to any of the offers that came.
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Isn't there an implied good faith?
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Well, I'm not suggesting she would
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act in in bad faith. I'm suggesting
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that the only clear item in the agreement
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that she has to follow, is to list it,
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and then once listed, if ultimately sold,
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there are other things that need to be done.
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But in terms of analyzing this with battle,
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it, it's the same as battle.
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Different circumstances, different points
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in the procedure but the conveyancing
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event is contemplated in the future.
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And that is when it would,
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all the rights would be cut off,
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is when that sale, in the future, happens.
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(Silence)
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(paper shuffling)
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Anything else?
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(shuffling pens and paper)
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Unless the panel has additional
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questions for me I think I'm going
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to rest on our briefs.
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Okay. Thank you very much.
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Thank you.
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(paper shuffling)
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Okay, Attorney Esposito.
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Good morning. May it please the court,
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Mark Esposito for the plaintiff, Kathleen Cerrone.
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(paper shuffling)
272
00:11:01.590 --> 00:11:06.100
This case is completely different from battle
273
00:11:08.055 --> 00:11:11.190
and battle was limited to the context
274
00:11:11.190 --> 00:11:16.190
of partition by sale. This was not a partition by sale.
275
00:11:16.440 --> 00:11:18.720
Why doesn't the settlement agreement here
276
00:11:18.720 --> 00:11:21.498
fail to extinguish the joint tenancy,
277
00:11:21.498 --> 00:11:25.260
in that, the terms of the agreement
278
00:11:25.260 --> 00:11:28.246
seem to contemplate future action?
279
00:11:28.246 --> 00:11:30.540
At some point in the future the
280
00:11:30.540 --> 00:11:32.820
joint tenancy will be terminated, but...
281
00:11:32.820 --> 00:11:35.373
Well they, they do contemplate future action.
282
00:11:36.414 --> 00:11:40.230
But there's also, it, it is a decree
283
00:11:40.230 --> 00:11:42.300
of the court and they, the parties,
284
00:11:42.300 --> 00:11:45.240
explicitly agreed that it would enter
285
00:11:45.240 --> 00:11:47.318
as, "The Judgment" in the case.
286
00:11:47.318 --> 00:11:49.710
The fact that it is "The Judgment"
287
00:11:49.710 --> 00:11:52.050
means that the partition proceeding
288
00:11:52.050 --> 00:11:54.954
has terminated and a completed partition,
289
00:11:54.954 --> 00:11:57.780
by definition, severs a joint tenancy.
290
00:11:57.780 --> 00:11:59.520
But, but the termination of the
291
00:11:59.520 --> 00:12:02.403
partition proceeding, which is hard to say,
292
00:12:05.100 --> 00:12:06.990
does that necessarily mean that
293
00:12:06.990 --> 00:12:08.673
there has been a partition?
294
00:12:09.900 --> 00:12:11.197
Right?
295
00:12:11.197 --> 00:12:14.040
So instead of executing
296
00:12:14.040 --> 00:12:17.130
on what, um, Jane wanted,
297
00:12:17.130 --> 00:12:21.142
the partition, the parties entered into agreement
298
00:12:21.142 --> 00:12:21.992
to in the future,
299
00:12:22.980 --> 00:12:24.030
you know,
300
00:12:24.030 --> 00:12:24.863
terminate the
301
00:12:24.863 --> 00:12:28.140
joint tenancy, and that terminated the partition
302
00:12:28.140 --> 00:12:30.750
but didn't result in a partition, I think is the
303
00:12:30.750 --> 00:12:32.823
the theory behind Jane's position here.
304
00:12:34.500 --> 00:12:36.090
I agree that that is the theory,
305
00:12:36.090 --> 00:12:37.680
But why is that wrong?
306
00:12:37.680 --> 00:12:40.909
Because the unities of possession
307
00:12:40.909 --> 00:12:42.774
and interest were severed.
308
00:12:42.774 --> 00:12:44.670
But, but yeah, so explain that.
309
00:12:44.670 --> 00:12:47.310
Mr. Cerrone no longer
310
00:12:47.310 --> 00:12:48.150
had the right
311
00:12:48.150 --> 00:12:50.853
to move back into the property.
312
00:12:51.794 --> 00:12:55.050
I think it's clear, again, under sort of
313
00:12:55.050 --> 00:12:57.030
ordinary principles of good faith,
314
00:12:57.030 --> 00:12:58.920
if the agreement is you're gonna remove all
315
00:12:58.920 --> 00:13:01.140
remaining property by a certain date,
316
00:13:01.140 --> 00:13:02.790
you can't come back the day after
317
00:13:02.790 --> 00:13:05.490
and say, "Okay, well now I'm moving back in."
318
00:13:05.490 --> 00:13:07.230
And their interests were different,
319
00:13:07.230 --> 00:13:10.920
because there's a possibility that Ms. Furnace
320
00:13:10.920 --> 00:13:13.290
at her unilateral option, she's either gonna
321
00:13:13.290 --> 00:13:16.830
own the entire property
322
00:13:16.830 --> 00:13:18.510
or she's gonna sell
323
00:13:18.510 --> 00:13:20.550
the property and Mr. Cerrone's gonna be
324
00:13:20.550 --> 00:13:22.650
entitled to a portion of the proceeds.
325
00:13:22.650 --> 00:13:24.930
But in either case, this is at
326
00:13:24.930 --> 00:13:28.350
her sole discretion. Their interests
327
00:13:28.350 --> 00:13:30.090
are no longer aligned or they're
328
00:13:30.090 --> 00:13:32.523
no longer the same.
329
00:13:33.720 --> 00:13:35.550
And so those unities
330
00:13:35.550 --> 00:13:37.290
are, are both severed. There's also
331
00:13:37.290 --> 00:13:38.553
the issue that,
332
00:13:40.290 --> 00:13:41.376
so again
333
00:13:41.376 --> 00:13:42.270
we say
334
00:13:42.270 --> 00:13:45.990
the partition was completed, this was a final order
335
00:13:45.990 --> 00:13:49.230
of the probate court, and the court
336
00:13:49.230 --> 00:13:53.220
necessarily has the authority and the jurisdiction
337
00:13:53.220 --> 00:13:56.040
to enforce its own final orders.
338
00:13:56.040 --> 00:13:58.553
So even if it were the case that
339
00:13:58.553 --> 00:14:01.170
the joint tenancy wasn't severed,
340
00:14:01.170 --> 00:14:02.550
and of course we don't concede that.
341
00:14:02.550 --> 00:14:05.340
Because you know, we think it was severed
342
00:14:05.340 --> 00:14:07.650
both by the destruction of the unities
343
00:14:07.650 --> 00:14:09.390
and by completion of the partition.
344
00:14:09.390 --> 00:14:10.920
But even if that weren't the case,
345
00:14:10.920 --> 00:14:13.560
there's a final order of the probate court
346
00:14:13.560 --> 00:14:17.640
that mandates that Ms. Furnace take actions
347
00:14:17.640 --> 00:14:20.430
that she has already agreed to take.
348
00:14:20.430 --> 00:14:22.890
And it's her refusal to take those actions,
349
00:14:22.890 --> 00:14:25.260
which she agreed to take, and which she was
350
00:14:25.260 --> 00:14:27.570
ordered to take by the probate court,
351
00:14:27.570 --> 00:14:30.240
that gave rise to the contempt proceeding
352
00:14:30.240 --> 00:14:31.893
that led to us being here.
353
00:14:33.596 --> 00:14:35.910
The...
354
00:14:35.910 --> 00:14:37.080
So I don't actually know the
355
00:14:37.080 --> 00:14:39.900
answer to this question. What if,
356
00:14:39.900 --> 00:14:42.330
you and I enter into a contract to do something
357
00:14:42.330 --> 00:14:44.670
in two years and then I drop dead?
358
00:14:44.670 --> 00:14:47.523
Can my heirs enforce that contract?
359
00:14:49.655 --> 00:14:51.650
I think it would depend on the
360
00:14:51.650 --> 00:14:54.390
on the circumstances and what the terms were.
361
00:14:54.390 --> 00:14:55.710
We also have in this...
362
00:14:55.710 --> 00:14:58.020
Well let's just say we enter into this contract,
363
00:14:58.020 --> 00:14:59.820
the one, the settlement agreement.
364
00:14:59.820 --> 00:15:03.662
So I, which party are you in this example?
365
00:15:03.662 --> 00:15:05.021
(laughter)
366
00:15:05.021 --> 00:15:06.693
Whoever died, I don't remember.
367
00:15:08.359 --> 00:15:10.650
So yeah, I mean you would be
368
00:15:10.650 --> 00:15:12.300
able to enforce it. There is also
369
00:15:12.300 --> 00:15:15.750
the issue here that, this wasn't just
370
00:15:15.750 --> 00:15:17.880
a contract to do something in the future.
371
00:15:17.880 --> 00:15:19.947
It wasn't just, "In two years,
372
00:15:19.947 --> 00:15:21.691
we're gonna see what happens..."
373
00:15:21.691 --> 00:15:24.990
This was, every month over the next
374
00:15:24.990 --> 00:15:28.020
two years, you're gonna, Mr. Cerrone,
375
00:15:28.020 --> 00:15:30.990
is gonna make these, half the mortgage payments.
376
00:15:30.990 --> 00:15:33.275
This is a valuable benefit that Ms. Furnace
377
00:15:33.275 --> 00:15:36.716
is getting, and she cashed those checks.
378
00:15:36.716 --> 00:15:39.510
She got that benefit. She initiated
379
00:15:39.510 --> 00:15:41.760
a partition proceeding, which by definition,
380
00:15:41.760 --> 00:15:43.560
is gonna sever the joint tenancy.
381
00:15:43.560 --> 00:15:46.260
So she can't have been surprised that, at the end
382
00:15:46.260 --> 00:15:48.270
of the proceeding she no longer owned
383
00:15:48.270 --> 00:15:51.069
the property jointly, with Mr. Cerrone.
384
00:15:51.069 --> 00:15:54.956
I, I do have a question, if you can hear me.
385
00:15:54.956 --> 00:15:55.789
Yes.
386
00:15:55.789 --> 00:15:58.740
And that, and that is how would,
387
00:15:58.740 --> 00:16:02.360
what happened in this case, where you've got
388
00:16:02.360 --> 00:16:06.510
a, a decree, how would other parties, a mortgagor,
389
00:16:06.510 --> 00:16:09.870
or people interested in the property,
390
00:16:09.870 --> 00:16:11.610
or if somebody wants to put a lien on something,
391
00:16:11.610 --> 00:16:14.313
how would they know this was partitioned?
392
00:16:15.210 --> 00:16:18.000
So in this case the mortgagor,
393
00:16:18.868 --> 00:16:21.972
sorry the mort-, I mean the, the bank,
394
00:16:21.972 --> 00:16:24.644
the, the hol-, holder of the mortgage
395
00:16:24.644 --> 00:16:27.690
was a party to the initial proceedings.
396
00:16:27.690 --> 00:16:31.860
So they had actual notice. The appeals court
397
00:16:31.860 --> 00:16:35.010
in this case sort of cautioned, in a footnote,
398
00:16:35.010 --> 00:16:38.010
that it would perhaps have been wiser
399
00:16:38.010 --> 00:16:42.383
for the decree to be recorded after it was issued
400
00:16:43.260 --> 00:16:44.580
which was not something that happened
401
00:16:44.580 --> 00:16:47.340
prior to Mr. Cerrone's death. This is not
402
00:16:47.340 --> 00:16:48.480
a case where there's a bonafide.
403
00:16:48.480 --> 00:16:50.940
So in general, counsel, what happens when a decree
404
00:16:50.940 --> 00:16:53.823
in other circumstances is not recorded?
405
00:16:56.190 --> 00:16:59.370
So if there were a bonafide purchaser
406
00:16:59.370 --> 00:17:01.770
for value who had come in and bought
407
00:17:01.770 --> 00:17:04.590
this property and, you know, somehow
408
00:17:04.590 --> 00:17:09.390
Ms. Furnace got all the money, there, perhaps,
409
00:17:09.390 --> 00:17:11.040
wouldn't be a claim by the estate
410
00:17:11.040 --> 00:17:13.413
of Mr. Cerrone to try and claw back,
411
00:17:14.760 --> 00:17:16.470
I don't know, something from the purchaser
412
00:17:16.470 --> 00:17:17.970
because they didn't have notice.
413
00:17:17.970 --> 00:17:20.460
You know, they didn't know. But that's,
414
00:17:20.460 --> 00:17:21.960
that's not what happened here.
415
00:17:21.960 --> 00:17:22.830
What happened here...
416
00:17:22.830 --> 00:17:24.390
Right. I know that, but I'm just, I'm thinking
417
00:17:24.390 --> 00:17:27.118
about other cases and I'm thinking about how we
418
00:17:27.118 --> 00:17:30.893
frame this and part of recording things is to
419
00:17:30.893 --> 00:17:34.237
put others, put the world on notice if there is,
420
00:17:34.237 --> 00:17:36.810
if there is an interest in the property.
421
00:17:36.810 --> 00:17:39.450
So how is the world on notice by this decree?
422
00:17:39.450 --> 00:17:43.440
So, so in this case, I'm not sure
423
00:17:43.440 --> 00:17:44.790
it's in the record, I believe there actually
424
00:17:44.790 --> 00:17:47.670
was a list pendings filed at the time the
425
00:17:47.670 --> 00:17:51.757
petition was initiated. But in addition to that
426
00:17:51.757 --> 00:17:54.333
partition statute,
427
00:17:56.559 --> 00:17:59.509
I believe in section seven...
428
00:17:59.509 --> 00:18:01.676
(silence)
429
00:18:02.884 --> 00:18:06.782
(silence continues)
430
00:18:06.782 --> 00:18:11.400
So upon the filing of a petition for partitioner,
431
00:18:11.400 --> 00:18:14.280
the petitioner shall forthwith cause to be filed
432
00:18:14.280 --> 00:18:16.560
in the regi-, in the registry of deeds
433
00:18:16.560 --> 00:18:18.780
for each registry district or any of the land
434
00:18:18.780 --> 00:18:22.320
included in the petition, lies a notice of the same,
435
00:18:22.320 --> 00:18:24.470
containing a brief description of the land.
436
00:18:25.564 --> 00:18:27.840
And then it goes on to,
437
00:18:27.840 --> 00:18:30.180
just outline what it is
438
00:18:30.180 --> 00:18:33.690
that needs to be included in that notice.
439
00:18:33.690 --> 00:18:35.970
But, so in this case had someone wished
440
00:18:35.970 --> 00:18:38.770
to purchase the land they would have seen
441
00:18:40.366 --> 00:18:42.930
that a partition proceeding was pending.
442
00:18:42.930 --> 00:18:44.430
Again, I believe there also was a
443
00:18:44.430 --> 00:18:47.190
list pendings filed. That person certainly
444
00:18:47.190 --> 00:18:48.930
would've had a duty
445
00:18:48.930 --> 00:18:51.180
to or, they at least
446
00:18:51.180 --> 00:18:54.090
would've been on notice
447
00:18:54.090 --> 00:18:55.320
that there was a
448
00:18:55.320 --> 00:18:57.120
potential issue that
449
00:18:57.120 --> 00:18:58.150
needed to
450
00:18:59.160 --> 00:19:00.060
be investigated.
451
00:19:00.060 --> 00:19:04.830
But the, but section seven it says they shall
452
00:19:04.830 --> 00:19:05.853
file a notice,
453
00:19:06.939 --> 00:19:08.250
would that,
454
00:19:08.250 --> 00:19:09.540
but if, if that
455
00:19:09.540 --> 00:19:13.080
isn't done under section seven, a proper notice
456
00:19:13.080 --> 00:19:14.913
then would there be no partition?
457
00:19:16.410 --> 00:19:19.125
Would the statute have been met?
458
00:19:19.125 --> 00:19:21.270
So I mean, it, it, it would depend
459
00:19:21.270 --> 00:19:23.310
on the circumstances. But the, the case
460
00:19:23.310 --> 00:19:27.150
of Nichols v Nichols, it's it's a 1902 case,
461
00:19:27.150 --> 00:19:29.743
but it's still good law. And it says
462
00:19:29.743 --> 00:19:33.184
that, "The mere fact that an agreement
463
00:19:33.184 --> 00:19:36.363
of the parties does not,
464
00:19:37.860 --> 00:19:38.693
you know,
465
00:19:38.693 --> 00:19:41.340
parrot all of the terms of the partition statute"
466
00:19:41.340 --> 00:19:44.820
doesn't mean that it's not enforceable.
467
00:19:44.820 --> 00:19:45.653
So if you make a deal...
468
00:19:45.653 --> 00:19:47.693
That's, that's not saying that they
469
00:19:47.693 --> 00:19:50.280
can just because they don't parrot the terms
470
00:19:50.280 --> 00:19:52.380
of the statute, it's not enforceable.
471
00:19:52.380 --> 00:19:54.060
What, what we're really getting at is
472
00:19:54.060 --> 00:19:56.160
if you don't fulfill the requirements of the
473
00:19:56.160 --> 00:20:00.128
statute by filing a notice is required under this,
474
00:20:00.128 --> 00:20:04.144
did your tenants invoke this section?
475
00:20:04.144 --> 00:20:06.343
(silence)
476
00:20:06.343 --> 00:20:09.663
Mention the partition statute? What does it say?
477
00:20:11.580 --> 00:20:14.613
I'm, I'm sorry I wasn't able to hear that question.
478
00:20:14.613 --> 00:20:17.580
I'm, I'm wondering whether the (indistinct)
479
00:20:17.580 --> 00:20:20.910
that you say is, was filed about this?
480
00:20:20.910 --> 00:20:23.310
Did it invoke
481
00:20:23.310 --> 00:20:26.003
the partition statute?
482
00:20:26.003 --> 00:20:30.845
Did it say this is a partition petition pending?
483
00:20:30.845 --> 00:20:33.433
I mean, as a factual matter, I,
484
00:20:33.433 --> 00:20:35.133
I don't recall the answer to that.
485
00:20:36.120 --> 00:20:39.210
But again, this is not a case where
486
00:20:39.210 --> 00:20:43.080
there's a bonafide purchaser for value
487
00:20:43.080 --> 00:20:46.110
who is being, you know, somehow prejudiced
488
00:20:46.110 --> 00:20:48.480
because they didn't know what was going on.
489
00:20:48.480 --> 00:20:50.530
This is a case where the very parties
490
00:20:51.538 --> 00:20:54.030
to the agreement are the parties to
491
00:20:54.030 --> 00:20:57.330
this litigation. Ms. Furnace knew full well
492
00:20:57.330 --> 00:20:59.760
what she had to do under the agreement.
493
00:20:59.760 --> 00:21:02.190
She initiated the partition, she signed
494
00:21:02.190 --> 00:21:05.580
the agreement, she cashed the checks,
495
00:21:05.580 --> 00:21:09.480
came time for her to perform her end of the,
496
00:21:09.480 --> 00:21:11.730
the deal, which was also ordered in the,
497
00:21:11.730 --> 00:21:14.700
in the decree. And she didn't, she no longer
498
00:21:14.700 --> 00:21:16.230
liked the deal so much at that point
499
00:21:16.230 --> 00:21:17.700
because now it was time for her to
500
00:21:17.700 --> 00:21:20.940
fulfill her obligations. But so, the sort of...
501
00:21:20.940 --> 00:21:24.660
Well our, alternatively, she had now full
502
00:21:24.660 --> 00:21:27.240
ownership with no joint tenant, I think,
503
00:21:27.240 --> 00:21:29.550
is what her position would be.
504
00:21:29.550 --> 00:21:31.140
Yeah, I mean that, that would be
505
00:21:31.140 --> 00:21:34.650
her position based on the completed partition,
506
00:21:34.650 --> 00:21:36.600
based on the destruction of the unities.
507
00:21:36.600 --> 00:21:37.950
I mean, I, I would say that's simply
508
00:21:37.950 --> 00:21:40.950
not accurate. But even, even if we were
509
00:21:40.950 --> 00:21:44.160
to say for the sake of argument that
510
00:21:44.160 --> 00:21:47.070
the joint tenancy was not severed,
511
00:21:47.070 --> 00:21:48.480
there's still the issue that this
512
00:21:48.480 --> 00:21:50.550
was a final order of a court.
513
00:21:50.550 --> 00:21:55.550
So regardless of who has title to the property
514
00:21:55.560 --> 00:21:57.420
there's a binding court order that
515
00:21:57.420 --> 00:22:00.120
was never appealed from. This was the final
516
00:22:00.120 --> 00:22:02.910
decree and the partition proceeding and the
517
00:22:02.910 --> 00:22:06.990
decree mandated that Ms. Furnace comply
518
00:22:06.990 --> 00:22:09.090
with the steps that were set out
519
00:22:09.090 --> 00:22:12.150
in the agreement. So it doesn't matter
520
00:22:12.150 --> 00:22:13.080
who holds title.
521
00:22:13.080 --> 00:22:15.000
Just remind me the agreement requires her to
522
00:22:15.000 --> 00:22:16.080
list the property.
523
00:22:16.080 --> 00:22:19.140
She had to list, either list it for sale by,
524
00:22:19.140 --> 00:22:22.140
I believe June 1st, 2020, or she needed
525
00:22:22.140 --> 00:22:24.216
to refinance and
526
00:22:24.216 --> 00:22:25.860
make a payment to
527
00:22:25.860 --> 00:22:30.457
Mr. Cerone by September 1st, 2020.
528
00:22:30.457 --> 00:22:33.330
The drafting of that agreement I would say
529
00:22:33.330 --> 00:22:35.730
is certainly not ideal, in a couple of
530
00:22:35.730 --> 00:22:39.420
different respects but it was pretty clear
531
00:22:39.420 --> 00:22:41.703
what the intent of the parties was.
532
00:22:44.304 --> 00:22:48.330
And there is, I would not want to
533
00:22:48.330 --> 00:22:51.792
be in the position of arguing that
534
00:22:51.792 --> 00:22:54.793
my client's been ordered to list a property
535
00:22:54.793 --> 00:22:57.750
but that means they can just leave
536
00:22:57.750 --> 00:23:00.030
it listed forever and never sell it.
537
00:23:00.030 --> 00:23:01.920
I mean, I wouldn't wanna make that
538
00:23:01.920 --> 00:23:05.673
argument in court. I think it's pretty clear
539
00:23:05.673 --> 00:23:09.540
what the parties were obligated to do
540
00:23:09.540 --> 00:23:11.160
under the agreement, which again,
541
00:23:11.160 --> 00:23:13.890
there are drafting problems with it
542
00:23:13.890 --> 00:23:16.200
but the whole purpose of the partition
543
00:23:16.200 --> 00:23:18.330
was that Ms. Furnace no longer wished
544
00:23:18.330 --> 00:23:20.610
to own this property with Mr. Cerrone.
545
00:23:20.610 --> 00:23:23.460
And in that context, the, the requirement
546
00:23:23.460 --> 00:23:25.290
to list takes on a new meaning,
547
00:23:25.290 --> 00:23:26.310
is what you're saying?
548
00:23:26.310 --> 00:23:27.810
Yeah, I mean, this is in the context
549
00:23:27.810 --> 00:23:30.349
of a partition proceeding, where
550
00:23:30.349 --> 00:23:33.060
ordinarily, you would have partition
551
00:23:33.060 --> 00:23:33.893
by
552
00:23:36.120 --> 00:23:37.620
physical division, which,
553
00:23:37.620 --> 00:23:40.020
which is favored but not practicable
554
00:23:40.020 --> 00:23:43.653
for a single family home on, on a,
555
00:23:44.520 --> 00:23:47.070
a lot with only room for one home.
556
00:23:47.070 --> 00:23:49.800
So necessarily, if you can't divide it,
557
00:23:49.800 --> 00:23:52.053
the only other alternative is sale.
558
00:23:53.100 --> 00:23:54.840
And this is the proceeding that she brought.
559
00:23:54.840 --> 00:23:57.120
She knows there's gonna be a sale of the
560
00:23:57.120 --> 00:24:00.450
of the property or, I mean, or she can
561
00:24:00.450 --> 00:24:03.750
buy out Mr. Cerrone's interest, which again,
562
00:24:03.750 --> 00:24:06.810
is essentially a sale of the property.
563
00:24:06.810 --> 00:24:09.730
So nothing that happened here was
564
00:24:11.486 --> 00:24:16.254
anything that was outside of the scope of,
565
00:24:16.254 --> 00:24:19.620
just the fact that it was a partition proceeding.
566
00:24:19.620 --> 00:24:22.230
The entire purpose of the proceeding was
567
00:24:22.230 --> 00:24:24.480
to ensure that these people who no longer
568
00:24:24.480 --> 00:24:26.430
wish to own property together were
569
00:24:26.430 --> 00:24:29.520
no longer going to own property together.
570
00:24:29.520 --> 00:24:33.630
The proceeding was finished, by an agreement,
571
00:24:33.630 --> 00:24:36.630
which was entered as a decree of
572
00:24:36.630 --> 00:24:40.410
the probate court, and the destruction
573
00:24:40.410 --> 00:24:42.903
of the unities, severs the joint tenancy,
574
00:24:43.800 --> 00:24:45.900
the issuance of the decree, which is
575
00:24:45.900 --> 00:24:48.840
a final decree and thus a completed partition
576
00:24:48.840 --> 00:24:51.000
that severs the joint tenancy.
577
00:24:51.000 --> 00:24:53.940
But even setting those issues aside, we still
578
00:24:53.940 --> 00:24:57.060
have a final decree of a court
579
00:24:57.060 --> 00:24:58.680
which has to be enforceable.
580
00:24:58.680 --> 00:25:02.010
And that's under the Sommer vs Maharaj case,
581
00:25:02.010 --> 00:25:05.881
that basically the court has the authority
582
00:25:05.881 --> 00:25:10.080
to order compliance with its own orders.
583
00:25:10.080 --> 00:25:13.980
So, even if it were correct, that somehow,
584
00:25:13.980 --> 00:25:17.070
the joint tenancy survived, the destruction
585
00:25:17.070 --> 00:25:20.500
of the unities and the joint tenancy survived
586
00:25:22.175 --> 00:25:25.770
the completion of the partition.
587
00:25:25.770 --> 00:25:28.950
Even if that were correct, we still have
588
00:25:28.950 --> 00:25:32.190
a final order of a trial court that
589
00:25:32.190 --> 00:25:35.310
was not appealed from and that mandates
590
00:25:35.310 --> 00:25:37.830
that Ms. Furnace takes certain actions
591
00:25:37.830 --> 00:25:41.880
which she made absolutely no attempt
592
00:25:41.880 --> 00:25:46.880
to comply with. And so, even if the joint tenancy
593
00:25:47.730 --> 00:25:49.980
were not severed it would not change
594
00:25:49.980 --> 00:25:53.250
the outcome in this case which is that
595
00:25:53.250 --> 00:25:57.120
the probate court's finding that Ms. Furnace
596
00:25:57.120 --> 00:26:00.843
was in contempt of its decree, must be affirmed.