Arrand v. Graham, 38.

• Decision Date: 21 May 1941
• Docket Number: No. 38.,38.
• Citation: 298 N.W. 281,297 Mich. 559
• Parties: ARRAND et ux. v. GRAHAM.
• Court: Michigan Supreme Court

297 Mich. 559

298 N.W. 281

ARRAND et ux.

v.GRAHAM.

No. 38.

Supreme Court of Michigan.

May 21, 1941.

Summary proceeding by Albert R. Arrand and wife against Vera Graham to recover possession of premises. From an adverse judgment, defendant appeals.

Reversed.

Appeal from Circuit Court, Saginaw County; William H. Martin, judge.

Argued before the Entire Bench.

Roland O. Kern, of Caro, for defendant and appellant.

Clarence J. Brainerd, of Chesaning, for plaintiffs and appellants.

BUTZEL, Justice.

Walter E. Madill and wife held title as tenants by the entirety to a theatre building in Chesaning, Michigan. On October 28, 1935, Mr. Madill entered into a written lease of the building and certain equipment therein with Fred A. Graham for a term of five years and with an option for an extension of five years and also for purchase of the equipment. Upon the death of Mr. Graham on August 27, 1937, Vera Graham, his widow and defendant herein, continued to manage the theatre and for over two years Madill accepted the rent from her without objection. On September 28, 1939, Albert R. Arrand and wife, plaintiffs herein, fully cognizant of the lease, and after being told that it would be up to them to remove defendant, purchased the property. Both Mr. and Mrs. Madill joined in the conveyance to plaintiffs. Shortly thereafter, plaintiffs served notice to quit and instituted summary proceedings to recover possession of the premises from defendant. The justice of the peace, sitting as a circuit court commissioner, found defendant ‘guilty’ of unlawfully holding possession. He held that the lease was invalid because it was not signed by the wife of Mr. Madill; also that the defendant was never appointed administratrix of the estate of Fred Graham, the orginal lessee, and therefore could not claim rights under the lease as a defense. On appeal by Mrs. Graham, the trial judge held the lease invalid because it was for a term of more than three years and not joined in by the wife of the lessor, one of the tenants by entirety. He relied largely upon Nurmi v. Beardsely, 275 Mich. 328, 266 N.W. 368, 369, wherein it was stated that neither tenant by the entirety ‘can alienate a moiety so as to defeat the title to the survivor.’ That case, however, dealt with the necessity of notice of a mechanic's lien to the wife as well as to the husband because the effect of the foreclosure of the lien might terminate the rights of both husband and wife in the title to the property. In the instant case both Mr. and Mrs. Madill are living, and as far as the record discloses, neither objected to the lease, nor to defendant's tenancy. The only question appellant asks us to decide is whether the lease continued to be valid during the lifetime of Mr. Madill, who as husband would be entitled to the rents, profits, and usufruct of the property.

Neither husband or wife alone can sever the tenancy by the entirety, or convey a moiety to defeat the title of the survivor. But it does not follow that, because leases for longer than three years are brought within the statutes relating to conveyances of real property by 3 Comp.Laws 1929, § 13309 (Stat.Ann. § 26.552), a lease for a longer term than three years executed by the husband alone is therefore invalid for the period during his lifetime.

The right of the husband to control the tenancy by entirety is governed by the common law. When the married women's statute was enacted (3 Comp.Laws 1929, § 13057 et seq., Stat.Ann. § 26.161 et seq.) giving the wife a right to control and own a separate estate, the question arose whether the statute abrogated the common law rights of the husband in respect to the tenancy. Two leading cases involving this issue under similar statutes are Hiles v. Fisher, 144 N.Y. 306, 39 N.E. 337, 30 L.R.A. 305, 43 Am.St.Rep. 762; and Pray v. Stebbins, 141 Mass. 219, 4 N.E. 824, 826,55 Am.Rep. 462. In Hiles v. Fisher, supra, Chief Justice Andrews held that the right of the husband to rents and profits was not an incident of tenancy by the entirety but rather the right of control which the common law gave the husband over the property of the wife. This right, he concluded, had been swept away as a necessary consequence of legislation investing her with the beneficial use of her own property, free from his control. Some states have followed this rule.

Pray v. Stebbins, supra, held that the married women's statute did not change the incidents given the tenancy at common law. Judge Field wrote: ‘The rights of husband and wife in this estate, therefore, must be determined by the common law. By that law the right to control the possession of such an estate during their joint lives is in the husband, as it is when the wife is sole seized. ‘Neither can convey during their joint lives, so as to bind the other, or defeat the right of the survivor to the whole estate.’ Pierce v. Chace, . But, subject to this limitation, the husband has the rights in it which are incident to his own property, and the rights which, by the common law, he acquires in the real property of his wife. He has during coverture, the usufruct of all the real estate which his wife has in fee-simple, fee-tail, or for life. By the great weight of authority he has a right to make a lease of an estate conveyed in fee to him and his wife, which shall be good against the wife during coverture, and shall fail only in the event of his wife surviving him.' (Citations).

Michigan followed the rule of Pray v. Stebbins and rejected the reasoning of Hiles v. Fisher, supra, in the case of Morrill v. Morrill, 138 Mich. 112, 101 N.W. 209,110 Am.St.Rep. 306,4 Ann.Cas. 1100.

In Way v. Root, 174 Mich. 418, 140 N.W. 577, 579, the leading Michigan case on the subject, Judge Steere...