Facts
The plaintiff and his brother were joint tenants under a settlement of land. The deed of settlement was kept in the brother’s custody. After the brother died intestate, the plaintiff discovered that the brother had, without the plaintiff’s knowledge or consent, deposited the deed with the defendant as security for a loan, thereby creating an equitable mortgage of the brother’s interest in the property. The plaintiff sued to recover the deed from the defendant.
Decision
The Full Court reversed the Divisional Court and held that the equitable mortgage did bring about severance of the joint tenancy, converting it into a tenancy in common in equity. The court ruled that an equitable mortgage operates to sever joint tenancy just as a legal mortgage would. It made no difference that the mortgage was effected without the plaintiff’s knowledge or consent, since one joint tenant may validly sever without the concurrence of the other. The defendant was therefore entitled to retain possession of the deed.
Principle
The court affirmed that any alienation of his interest by a joint tenant — including an equitable mortgage — will bring about severance of the joint tenancy, and one joint tenant may validly sever without the concurrence of the other.
