Appeal of Lewis

• Decision Date: 24 April 1891
• Court: Michigan Supreme Court
• Parties: Appeal of LEWIS.

48 N.W. 580

85 Mich. 340

Appeal of LEWIS.

Supreme Court of Michigan

April 24, 1891

Error to circuit court, Lenawee county.

Weaver & Bean, for appellant.

Salsbury & O'Mealey, for appellees.

GRANT, J.

William W. Lewis and Nellie B. Lewis intermarried and lived together as husband and wife for some years prior to 1881, when she filed her bill for divorce. May 23, 1881, John Lewis, a brother of William, deeded to them a lot of land. The parties to the deed were described as follows: "John Lewis, of the first part, and William Lewis and Nellie B. Lewis, his wife, as husband and wife, in entirety, of the second part." The deed then conveyed "unto the said parties of the second part in entirety, as husband and wife and to their heirs and assigns of the survivor of them forever, * * * to have and to hold the said premises, as described, to the said parties of the second part in entirety, to the sole and only proper use, benefit, and behoof of the said parties of the second part, their heirs and assigns, forever, in entirety." Upon the execution of this deed the divorce proceedings were discontinued, and the parties resumed their marital relations, which they continued for some time, when she filed another bill for divorce, upon which a decree was granted her December 29 1884. William died in May, 1885, leaving two children, the issue of said marriage. Letters of administration were duly issued upon his estate, and claims proved against it to the amount of $600. Upon the application of the administrator the probate court granted an order to sell the undivided one-half of the lands in controversy as belonging to the estate, for the purpose of paying the debts and expenses of administration. On appeal to the circuit court this decision was affirmed, and the case appealed to this court. 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. [85 Mich. 342] ^*362. By the express terms of the deed the estate is declared not to be in joint tenancy, but in entirety.

It is contended by the learned counsel for the appellee that the entirety of seisin of husband and wife in real estate, with the incident right of survivorship, cannot exist independent of the legal condition of unity of person on which it rests and that a decree of divorce, which destroys the unity of person, destroys also the entirety of seisin; that the right of survivorship is destroyed by the decree, and that the parties then become tenants in common, seised in severalty of their respective moieties. We are cited in support of this doctrine to the following authorities: Freem. Co-Ten. � 76. 2 Bish. Mar. & Div. (5th Ed.) 716; Ames v. Norman, 4 Sneed, 696; Harrer v. Wallner, 80 III. 197; Lash v. Lash, 58 Ind. 526; Baker v. Stewart, 40 Kan. 442, 19 P. 904. Freeman and Bishop cite, as supporting their text, the case of Ames v. Norman. In that case, decided in 1857, a creditor of the husband had levied upon his interest in the estate, which had been deeded to him and his wife. The question arose in a divorce proceeding brought by the wife, who, in her bill, prayed that the land be decreed to her as her absolute estate. The court held that tenancy by the entirety could not exist independent of the matrimonial union; that the creditor, by his purchase, became invested with the right of the husband as it existed at the time of the sale, viz., the right to occupy and enjoy the profits of the land during the joint lives of the husband and wife, subject to the contingency that, if the wife survived her former husband, his estate would then terminate. In commenting upon this case Mr. Bishop says: "According to the Tennessee doctrine, the creditor took, not only what was the husband's, but something else, which was the wife's; according to the author's view, the creditor and late wife were after the divorce tenants in common of the land for their joint lives, with a remainder to the survivor." It matters not, perhaps, so far as the wife's interest is concerned, whether this estate be denominated one in common, joint tenancy, or entirety, so long as the right of survivorship is maintained. This may account for the fact that, in some of the decisions, the terms "joint tenancy" and "tenancy by the entirety" are used interchangeably, when referring to this estate. Aside from the right of survivorship, the only other interest which the husband can hold, distinct from the wife, is a sort of life-interest, which some authorities have held he may convey away, and which may be seized and sold on execution. 1 Bish. Mar. Wom. � 621. In Harrer v. Wallner the complainant had applied for a divorce and for a partition in the same bill, claimed alimony in the land, and to have her rights in it settled between her and her husband. The case expressly holds that by the divorce the estate was changed to a tenancy in common. After referring to the statute of that state destroying joint tenancies, the court say: "The estate, with the jus accrescendi, is not being favored by our law, and, the termination of a marriage relation having worked a change in the rights of the parties in the estate, the courts should rather hold that the change is broad enough to convert it into an estate in common than to hold that, whatever change...