Albro v. Allen
| Decision Date | 20 March 1990 |
| Docket Number | Docket No. 83890 |
| Citation | 434 Mich. 271,454 N.W.2d 85 |
| Parties | Helen R. ALBRO, Plaintiff-Appellee, v. Carol ALLEN, Defendant, and Steven Kinzer, Defendant-Appellant. 434 Mich. 271, 454 N.W.2d 85 |
| Court | Michigan Supreme Court |
York and Dolan, P.C., John A. Dolan, Mt. Clemens, for plaintiff-appellee.
Francis J. Hearsch, Jr., Eileen K. Smith, Anthony and Hearsch, Mt. Clemens, for defendant-appellant.
Real Property Law Section, State Bar of Michigan, Carl A. Hasselwander, Chairperson by Thomas C. Simpson, Allison D. Daniels, May, Gowing, Simpson & Strote, amicus curiae.
The issue before us is whether a person who holds title to real property with another as "joint tenants with full rights of survivorship" may convey a life estate interest without the consent of the cotenant. The Court of Appeals held that the trial court was correct in enjoining such a transfer. We disagree.
On October 14, 1977, certain commercial property in Macomb County was conveyed to Carol Allen and Helen Albro "as joint tenants with full rights of survivorship." On April 23, 1987, Carol Allen entered into a purchase agreement with Steven Kinzer, in which she agreed to convey her interest in the property to Kinzer by quitclaim deed.
On May 12, 1987, Helen Albro instituted an action to enjoin sale of Allen's interest. Both Allen and Kinzer were named as defendants. Upon institution of the action, a temporary restraining order was entered enjoining the sale.
Both Albro and Kinzer filed motions for summary disposition pursuant to MCR 2.116(C)(8). The trial court granted summary disposition in favor of Albro and permanently enjoined Allen and Kinzer from completing the pending sale, and further enjoined Allen "from any transfer, conveyance, sale or alienation of such property without the consent and approval of Helen R. Albro...." The trial court in its opinion noted the general rule that "one joint tenant can transfer his or her undivided interest in the estate to a third person, who becomes a tenant in common with the other joint tenant," thus destroying the survivorship feature. However, the court stated that "where property stands in the name of joint tenants with the right of survivorship, neither party may transfer title to the premises and deprive the other of such right of survivorship." The court found that the sale of Allen's interest would create a tenancy in common and necessarily deprive Albro of her right of survivorship.
The Court of Appeals described the interest held by Albro and Allen as "a joint life estate followed by a contingent remainder in fee to the survivor." 170 Mich.App. 238, 240, 428 N.W.2d 34 (1988). The Court of Appeals found that the contingent remainder was alienable, and that Allen could "lawfully alienate her future contingent interest in fee" without destroying Albro's right of survivorship. Id., p. 242, 428 N.W.2d 34. However, the Court of Appeals held that Allen could not alienate her interest in the joint life estate, since "by operation of law, any alienation would convert the joint life estate to a tenancy in common, thereby defeating the survivorship element of the joint life estate." Id., p. 241, 428 N.W.2d 34.
Kinzer sought leave to appeal in this Court, contending that the Court of Appeals erred in concluding that Allen could not transfer her interest in the joint life estate. We granted leave on that issue, 432 Mich. 892, 437 N.W.2d 260 (1989). The alienability of the contingent remainder is not before us.
Michigan law recognizes two forms of joint tenancies. The first is of the type typically recognized in various jurisdictions. This joint tenancy is characterized by the four unities, that is, unity of interest, unity of title, unity of time, and unity of possession. 2 Tiffany, Real Property (3d ed), Sec. 418, p. 196. 1 Each joint tenant shares in possession of the entire estate, and each is entitled to an undivided share of the whole. 4A Powell, Real Property, p 617, p. 51-9. The principal characteristic of the joint tenancy is the right of survivorship. Upon the death of one joint tenant, the surviving tenant or tenants take the whole estate. Tiffany, supra, Sec. 419, p. 198. In the standard joint tenancy, the right of survivorship may be destroyed by severance of the joint tenancy. Id., p. 199. The joint tenancy may be severed by an act of the parties, by conveyance by either party, or by levy and sale on an execution against one of the parties. Smith v. Smith, 290 Mich. 143, 287 N.W. 411 (1939). If one joint tenant conveys his interest to a third party, then the remaining joint tenant and the grantee become tenants in common, thus destroying the element of survivorship. Powell, supra, p 618, p. 15-14; Tiffany, supra, Sec. 425, p 209.
The "joint tenancy" involved in this case, while unfortunately sharing the same appellation as the typical joint tenancy, is an interest of a different nature. It is created by express words of survivorship in the granting instrument in addition to those creating a joint tenancy, such as "and to the survivor of them," Schulz v. Brohl, 116 Mich. 603, 605, 74 N.W. 1012 (1898); "to them and the survivor of them," Finch v. Haynes, 144 Mich. 352, 355, 107 N.W. 910 (1906); "or survivor of them," Jones v. Snyder, 218 Mich. 446, 447, 188 N.W. 505 (1922); "with right of survivorship," Ballard v. Wilson, 364 Mich. 479, 481, 110 N.W.2d 751 (1961); Mannausa v. Mannausa, 374 Mich 6, 8, 130 N.W.2d 900 (1964); "with full rights of survivorship," Jones v. Green, 126 Mich.App. 412, 413, 337 N.W.2d 85 (1983).
At the crux of this case is the distinction between the "joint tenancy with full rights of survivorship" and the ordinary joint tenancy. The "joint tenancy with full rights of survivorship" is comprised of a joint life estate with dual contingent remainders. See 1 Cameron, Michigan Real Property Law, Sec. 9.11, p 274. While the survivorship feature of the ordinary joint tenancy may be defeated by the act of a cotenant, the dual contingent remainders of the "joint tenancy with full rights of survivorship" are indestructible. A cotenant's contingent remainder cannot be destroyed by an act of the other cotenant.
The joint life estate with dual contingent remainders was first recognized in Schulz v. Brohl, supra. In Schulz, the interest created by a deed to Peter Brohl and Christine Schulz "and to the survivor of them" was described as "a moiety to each [party] for life, with remainder to the survivor in fee." 116 Mich at 605, 74 N.W. 1012. Peter conveyed his interest to a third party, Joseph Brohl, reserving a life estate. Subsequent to Peter's death, Christine Schulz brought an action to quiet title. The Court held in her favor, stating that "[n]either grantee could convey the estate so as to cut off the remainder." Id. The question of a transfer of the life estate was not at issue, since Peter did not attempt to transfer his life estate, instead reserving it to himself.
In Finch v. Haynes, supra, land was deeded to Cora Finch and Nellie Haynes "and the survivor of them." The Court again characterized the interest created as "a moiety to each [party] for life, with remainder to the survivor in fee." Id., p. 354, 107 N.W. 910. Nellie quitclaimed her interest in the land to her husband, John Haynes. Subsequent to Nellie's death, Cora Finch brought an action to quiet title. The Court noted that if the deed had merely made the parties "joint tenants of the fee," either of them could by conveyance deprive the other of the right of survivorship. Id., p. 355, 107 N.W. 910. However, where the parties were "joint tenants for life with a contingent remainder in fee to the one who survives," id., quoting 1 Washburn, Real Property (6th ed), Sec. 866, the Court held that "no joint tenant [could], by his conveyance or otherwise, affect the right of survivorship." Id., p. 355, 107 N.W. 910. The question of the transfer of Nellie's life estate was not at issue, and could not have been, for upon the death of the original holder of the "joint life estate," Cora Finch's contingent remainder was realized, and she acquired title in fee.
In Jones v. Snyder, supra, this Court construed a deed to Melvin Root and to Jared, Susan, and Flora Snyder "and to the survivors or survivor of them," as creating in the grantees a "joint tenancy for life ... with a contingent remainder in fee simple to the survivor," id., pp. 447, 449, 188 N.W. 505. Root conveyed an undivided one-half interest in the property to Julia Jones. By the time Jones brought suit for partition, only Flora Snyder survived of the original grantees. The Court held in favor of Flora Snyder. Again, however, the Court was not required to decide whether Jones had acquired a life estate in the land by virtue of the conveyance from Root, for, upon the death of all of the other original cotenants, Flora Snyder acquired the land in fee.
The Court of Appeals has repeatedly recognized that the express words of survivorship create a joint life estate with dual contingent remainders, Butler v. Butler, 122 Mich.App. 361, 364, 332 N.W.2d 488 (1983); ("joint life estate in all of the grantees followed by a contingent remainder in fee to the survivor"); In re Ledwidge Estate, 136 Mich.App. 603, 607, 358 N.W.2d 18 (); Albro v. Allen, 170 Mich.App. at 240, 428 N.W.2d 34 ().
The Court of Appeals correctly recognized that the interest held by Allen and Albro was a "joint life estate followed by a contingent remainder in fee to the survivor," id., but it erred when it applied the rules governing ordinary joint tenancies to this case. We do not agree with the conclusion that "by operation of law, any alienation would convert the joint life estate to a tenancy in common, thereby defeating the survivorship element of the joint life estate." Id.,...
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