SanFord v. Bertrau

• Citation: 169 N.W. 880,204 Mich. 244
• Decision Date: 27 December 1918
• Docket Number: No. 31.,31.
• Parties: SANFORD et ux. v. BERTRAU et ux.
• Court: Supreme Court of Michigan

204 Mich. 244

169 N.W. 880

SANFORD et ux.

v.BERTRAU et ux.

No. 31.

Supreme Court of Michigan.

Dec. 27, 1918.

Appeal from Circuit Court, Mecosta County, in Chancery; William B. Brown, Judge.

Bill by William M. Sanford and wife against Louis F. Bertrau and wife. Decree dismissing bill and plaintiffs appeal. Affirmed.

Argued before OSTRANDER, C. J., and KUHN, BIRD, MOORE, STEERE, BROOKE, FELLOWS, and STONE, JJ. Cogger & Cogger and Broomfield & Worcester, all of Big Rapids, for appellants.

Travis, Merrick, Warner & Johnson, of Grand Rapids (Butler & Everett, of Big Rapids, of cousnel), for appelees.

STONE, J.

The bill of complaint in this case was filed to remove an alleged cloud placed upon the title of certain real estate held by the entireties by the plaintiffs, by reason of the sale of the same upon execution in favor of the defendants herein, issued upon a joint judgment against the plaintiffs herein.

Counsel for plaintiffs and appellants state in their brief that the sole and only question presented is whether lands held by a husband and wife, as tenants by the entirety, are subject to levy and sale by virtue of a writ of fieri facias issued upon a joint judgment against husband and wife.

The record shows that on January 7, 1918, in the circuit court for the county of Mecosta, in a suit at law involving the fraud of the defendants there pending, wherein Louis F. Bertrau and Mary A. Bertrau were the plaintiffs and William M. Sanford and Mary J. Sanford were defendants, a judgment was duly rendered and entered in favor of said plaintiffs, and against the said defendants for $5,832, with costs of suit to be taxed; that after the rendition of the judgment, an execution was duly issued thereon and placed in the hands of the sheriff for service, and that on or about February 2, 1918, that officer, by virtue of said execution, made a levy upon the property described in the bill of complaint, and upon due notice sold the said premises on March 23, 1918, for the sum of $6,046.05 to the defendants herein, and gave to them the usual certificate of sale.

It is undisputed that the title of the plaintiffs herein to the real estate at the time of said levy was vested in them, by virtue of a deed bearing date August 11, 1914, executed by Louis F. Bertrau and wife to said ‘William M. Sanford and Mary J. Sanford, his wife, jointly with the right of survivorship.’

In dismissing the bill of complaint upon the hearing, the learned circuit judge seems, by the record, to have been influenced somewhat by the fact that the judgment had been rendered in a case where the defendants (the plaintiffs here) had been charged with fraud in obtaining title to the property levied upon, having in mind, no doubt, the rule that estates in entirety cannot be created at the expense of creditors, and held in fraud of their rights, as was held by this court in Newlove v. Callaghan, 86 Mich. 297, 48 N. W. 1096,24 Am. St. Rep. 123.

Upon this record, however, we think we should treat the case as one where a valid judgment had been obtained against husband and wife, and where lands held by them as tenants by the entirety have been levied upon and sold by virtue of the execution.

There is no homestead question here involved, the property levied upon and sold being business property, upon which were located a store and other buildings.

It is stated by counsel, and we think correctly, that this question is a new one in this state, in so far as the holdings of this court are concerned.

It is well settled in this state that land held by husband and wife as tenants by entirety is not subject to levy under execution on judgment rendered against either husband or wife alone. The subject of estates by the entirety has been considered in many aspects by this court, as will appear by reference to the following cases, where the earlier decisions have been referred to:

Vinton v. Beamer, 55 Mich. 559, 22 N. W. 40. In speaking of the estate this court said it was an entirety. ‘They both took the same estate, the same interest, and it could not be separated. The right of the one was the right of the other. Neither could, by a separate transfer, affect the rights of the other, or his own. What would defeat the interest of one would also defeat that of the other.’

In Re Appeal of Nellie Lewis, 85 Mich. 340, 48 N. W. 580,24 Am. St. Rep. 94, this court said:

‘The estate created by this deed was not an estate in joint tenancy, but an estate in entirety. A joint tenancy implies a seisin per my et per tout, while an estate in entirety implies only a seisin per tout.’ 4 Kent Comm. 362.'

See cases there cited.

Dickey v. Converse, 117 Mich. 449, 76 N. W. 80,72 Am. St. Rep. 568. This case reviews many of the earlier cases, and is worthy of examination in this connection. Naylor v. Minock, 96 Mich. 182, 55 N. W. 664,35 Am. St. Rep. 595. See, also, Morrill v. Morrill, 138 Mich. 112, 101 N. W. 209,110 Am. St. Rep. 306,4 Ann. Cas. 1100, where it is stated that the Married Women's Act (Comp. Laws 1897, § 8690) is not applicable to estates by entirety, Justice Carpenter, in writing the unanimous opinion of this court, saying:

‘I think it must be conceded that the decisions of this court have determined that this statute has no application to estates by entirety’-citing numerous cases.

Many more cases, some of them still later in date, might be cited, but we think it unnecessary.

It is urged by counsel for plaintiffs and appellants that before the death of the either of the parties each holds an estate similar in some respects to that of a contingent remainder, and that it has been held that a contingent remainder is not subject to execution. We think the better doctrine is that the right of survivorship is merely an incident of an estate by entirety, and does not constitute a remainder, either vested or contingent. Davis v. Clark, 26 Ind. 424, 89 Am. Dec. 471;Shinn v. Shinn, 42 Kan. 1, 21 Pac. 813,4 L. R. A. 224.

It is also asserted by counsel that land held by entireties by husband and wife is not subject to an execution, and the following cases are cited: Carver v. Smith, 90 Ind. 222, 46 Am. Rep. 210;Dodge v. Kinzy, 101 Ind. 102.

The first of these cases simply holds that lands conveyed to husband and wife are not subject to the levy of an execution against either, while both are living. There the execution against the husband was levied upon the land. Nobody would dispute the correctness of that ruling.

The case of Dodge v. Kinzy involved the question of a contract of suretyship of the wife, and her joining in a mortgage on property held by entireties, to secure the payment of an individual debt of the husband, and has no bearing upon the question we are discussing.

It is well settled that when a judgment is rendered against one of two tenants by entireties, a levy under execution on such judgment cannot be made on the real estate held by them as tenants by entireties. This is becasue of the peculiar nature of the estate held by them. Both are seized of the whole, and an estate by entireties is inseparable and cannot be partitioned. Therefore it has been quite universally held that an estate by entireties cannot be sold upon execution on a judgment rendered against either the husband or wife, because neither has any separate interest in such an estate.

But after diligent search by counsel, and by the writer of this opinion, a case has not ben found which holds that an estate in land held by husband and wife as tenants by entireties is not subject to execution upon a judgment against them jointly. On the contrary, the few cases in which this question is presented hold that a judgment rendered against husband ans wife jointly may be satisfied out of an estate in land held by them as tenants by entireties.

In Sharpe v. Baker, 51 Ind. App. 547,96 N. E. 627,99 N. E. 44, an action was brought by appellants, who were husband and wife, to quiet their title as tenants by entireties to certain real estate, and to eject appellees from the possession of said real estate. A joint judgment had been taken against appellants at a time when they were owners, as tenants by entireties, of the real estate in controversy, and an execution was issued on said judgment against both of said appellants, and levied upon the estate so held by them as tenants by the entireties. Said land was regularly advertised and sold under said execution as the property of appellants, and appellees claimed title and possession to said real estate under and by virtue of a sheriff's deed; while the appellants claimed that the estate held by them as tenants by entireties was not subject to sale on execution, and that the sheriff's deed did not have the effect to divest their title, and that they were still owners of the real estate as tenants by entireties. We quote at length from the well-considered opinion of that court:

‘The question we are thus called on to decide is entirely new. The industrious and able attorneys who have briefed this case and argued it orally before the court have been unable to cite a case from any court in which the question has been decided. The writer of this opinion has made diligent search in the hope of finding a decision of some court which might serve as a precedent, but without avail. We must therefore determine this question from a consideration of the legal principles which relate to the creation of...