Battjes Fuel & Bldg. Material Co. v. Milanowski

• Decision Date: 08 December 1926
• Docket Number: No. 56.,56.
• Citation: 211 N.W. 27,236 Mich. 622
• Parties: BATTJES FUEL & BUILDING MATERIAL CO. v. MILANOWSKI et al. (PETERSON et al., Garnishees).
• Court: Michigan Supreme Court

236 Mich. 622

211 N.W. 27

BATTJES FUEL & BUILDING MATERIAL CO.

v.MILANOWSKI et al. (PETERSON et al., Garnishees).

No. 56.

Supreme Court of Michigan.

Dec. 8, 1926.

Error to Circuit Court, Kent County; William B. Brown, Judge.

Action by the Battjes Fuel & Building Material Company against Edward Milanowski, with Richard Peterson, and another as garnishee defendants. After plaintiff had judgment against defendant, a motion of Edward Milanowski and another, interpleading joint defendants, to dismiss the garnishment proceeding, was granted, and plaintiff brings error. On case-made. Affirmed.

Argued before the Entire Bench.Hilding & Hilding and Robert S. Tubbs, all of Grand Rapids, for appellant.

J. T. & T. F. McAllister, of Grand Rapids, for appellees.

WIEST, J.

Plaintiff has a judgment against Edward Milanowski. Under writ of garnishment, sued out by plaintiff, garnishee defendants Richard and Anna Peterson made the following disclosure:

‘That at the date of the service of the writ of garnishment herein, the above-named garnishee defendants were indebted to the above-named principal defendant in the sum of $4,489.37; which amount is due on a land contract between Edward Milanowski and wife, Frances Milanowski, and Richard Peterson and Anna Peterson, dated the 10th day of November, 1925, and payable $35 on the fifth day of each month, plus interest at the rate of 6 1/2 per cent., which is to be computed monthly and deducted from the payment of $35 before any shall be credited on principal.’

Edward and Frances Milanowski were allowed to interplead and moved to dismiss the garnishment proceeding because the debt disclosed was due to them jointly. This motion was granted. We review on case-made.

Edward and Frances Milanowski are husband and wife and, at the date of the land contract to the Petersons, held the property, as tenants by the entirety, under a warranty deed. The circuit judge found, as a matter of law:

‘That the purchase-price money, due from Richard Peterson and Anna Peterson, his wife, to Edward Milanowski and Frances Milanowski, husband and wife, tenants by the entirety, is a joint fund. The judgment upon which the writ of garnishment in this case was issued is the individual debt of Edward Milanowski. The joint fund due and payable to Edward Milanowski and Frances Milanowski, husband and wife, is not subject to garnishment for a debt due from Edward Milanowski individually.’

Counsel for plaintiff contend that Edward and Frances Milanowski are joint owners and not by the entirety of the payments on the land contract, and such fund may be garnished as personal property on a debt due from one of such joint owners, or, at least, to the extent of the interest of the husband therein. Act No. 126, Public Acts 1925, provides that in case a contract for the sale of property, owned by husband and wife as tenants by the entirety, is entered into by them as vendors, then all payments, together with interest, unless otherwise expressly stated in the contract, shall, after the death of either, be payable to the survivor, and all rights in and under the contract shall vest in the survivor. This statute recognizes a nonseverable interest of husband and wife in such a contract, with full rights to the survivor. This negatives any right of the husband to a determinable moiety under judicial holding, so long as the contract stands unimpeached for fraud. The husband could not, in any proceeding known to the law, have judgment determining and separating his interest, and what he cannot have, his creditor, in his place, cannot secure. If division is made, what part of the payments on the land contract will be set over to Mrs. Milanowski? If no portion is to be set over to her, what authority is there for depriving her of her contract rights? To the extent of its judgment demand, plaintiff seeks to be placed in the shoes of Edward Milanowski with relation to payments on the land contract. The trouble with this is that the shoes of Frances Milanowski cannot be occupied by plaintiff. But plaintiff says a husband takes the avails from lands held by husband and wife as tenants by the entirety, and intimates that the same right should prevail in this case and the creditor take the payments so far as representative of earnings on the investment.

In Badger Lumber Co. v. Stern, 123 Wis. 618, 101 N. W. 1093,3 Ann. Cas. 802, the garnishee held a contract for the purchase of land from a husband and wife, upon which eight payments of $25 each remained to be made, and such indebtedness was absolute and not subject to any contingency. In dismissing the writ, the court held:

‘Whatever may be the rule in other jurisdictions, it is well settled in this state that a debt due jointly to the principal defendant and another or others cannot be reached by garnishment in an action against such defendant alone. Singer v. Townsend, 53 Wis. 226, 10 N. W. 365. This is in harmony with the great weight of authority. We cite a few cases only: Trickett v. Moore, 34 Kan. 755, 759, 10 P. 147, and cases there cited; Hawes v. Waltham, 18 Pick. [Mass.] 451;Stillings v. Young, 161 Mass. 287, 37 N. E. 175;Kennedy v. McLellan, 76 Mich. 598, 43 N. W. 641;Hanson v. Davis, 19 N. H. 133. The reason for the rule is that such principal ‘defendant could not alone have maintained a suit therefor against the garnishee.’ 14 Am. & Eng. Ency. of Law (2d Ed.), 798, and cases there cited. With the extended rights given to married women by our statutes, we perceive no reason why the same rule should not apply to an indebtedness owing by the garnishee to husband and wife.'

In Brown v. Collins, 18 R. I. 242, 27 A. 329, the debtor and his wife hired out to a town to take charge of an almshouse and were to receive $400. It was sought by garnishment to reach the interest of the husband. In discharging the garnishee, the court said:

‘The contract between the garnishee and the defendant and his wife was a joint...