Butler v. Butler, Docket No. 57913

• Decision Date: 06 May 1983
• Docket Number: Docket No. 57913
• Citation: 122 Mich.App. 361,332 N.W.2d 488
• Parties: Lucy BUTLER, Plaintiff-Appellant, v. Thomas BUTLER, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 488

332 N.W.2d 488

122 Mich.App. 361

Lucy BUTLER, Plaintiff-Appellant, v. Thomas BUTLER, Defendant-Appellee.

Docket No. 57913.

Court of Appeals of Michigan.

Submitted Oct. 7, 1982.

Decided Jan. 10, 1983.

Released for Publication May 6, 1983.

Grant, Boigon, Schon & Wise, P.C., Southfield, for plaintiff-appellant.

Stanley J. Szot, Sterling Heights, for defendant-appellee.

Before DANHOF, C.J., and KAUFMAN and RILEY, JJ.

KAUFMAN, Judge.

On May 4, 1981, the Macomb County Circuit Court rendered a written opinion denying plaintiff's action for partition. Plaintiff appeals from this order as of right.

During their marriage plaintiff, Lucy Butler, and defendant, Thomas F. Butler, acquired two parcels of land: a marital home in St. Clair Shores, Macomb County, and a small parcel of unimproved realty in St. Clair County.

On July 22, 1977, plaintiff and defendant conveyed both parcels to themselves and their three sons with the following language: "Thomas F. Butler, and Lucy Butler his wife, and Thomas M. Butler, Timothy John Butler, and Michael Anthony Butler, all single men, not as tenants in common, but as joint tenants with rights of survivorship". Both deeds were subsequently recorded on August 2, 1977, in the Macomb County Register of Deeds office. On March 17, 1980, a judgment of divorce was entered dissolving plaintiff's and defendant's marriage. The trial court's opinion in the divorce action stated that the parties' conveyances to themselves and their three sons, as joint tenants with rights of survivorship, precluded the court from distributing the real estate between the parties.

Following the divorce, the two adult sons reconveyed whatever interests they had acquired back to their parents, "Thomas F. Butler, a single man, and Lucy Butler, his former wife, as tenants in common, and not as joint tenants". A conservator was authorized to reconvey the minor son's interest back to his parents in a deed utilizing the identical language.

On June 19, 1980, plaintiff filed a partition action in Macomb County Circuit Court requesting that the two parcels be partitioned in accordance with the parties' interests. In an opinion dated April 16, 1982, the trial court denied plaintiff's request for partition on the grounds that the deeds of reconveyance created in the grantees a joint tenancy with rights of survivorship which could not be partitioned.

An established line of Michigan cases has held that the addition of the words "with a right of survivorship" to a deed or other instrument creating a joint tenancy creates not a mere joint tenancy, but an interest known as a "joint tenancy with rights of survivorship". The Michigan Supreme Court has held that when the express words of survivorship are used in a conveyance, the parties create a joint life estate in all of the grantees followed by a contingent remainder in fee to the survivor. Jones v. Snyder, 218 Mich. 446, 449, 188 N.W. 505 (1922); Beaton v. LaFord, 79 Mich.App. 373, 376, 261 N.W.2d 327 (1977). This right of survivorship cannot be defeated by the voluntary act of only one of the life tenants. For this reason one cotenant in a joint tenancy with rights of survivorship is not entitled to have partition over the objection of another cotenant.

If the July 22, 1977, deeds conveyed to the plaintiff and defendant a joint tenancy with rights of survivorship, the plaintiff's request for partition must be denied. Plaintiff, however, argues that, while the deeds created a joint tenancy with rights of survivorship in the three sons, the interest created in the plaintiff and defendant was a tenancy by the entirety. Under M.C.L. Sec. 552.102; M.S.A. Sec. 25.132, upon divorce, every husband and wife holding real estate as tenants by the entireties become tenants in common and are entitled to bring an action for partition. Thus, if the interests created in the parties by the July 22, 1977, deeds are construed as a tenancy by the entirety, the land is subject to partition.

The relevant language of the deeds is as follows: "Thomas F. Butler, and Lucy Butler, his wife, and Thomas M. Butler, Timothy John Butler, and Michael Anthony Butler, all single men, not as tenants in common, but as joint tenants with rights of survivorship".

At common law, estates creating a plurality of tenancies were known as joint estates. Where a conveyance of real property was made to a husband and wife and a third person, the husband and wife were regarded as one person and they therefore took but one moiety as tenants by the entirety while the third person took his share as a tenant in common. This principle was explained by Tiffany in his work on real property:

"This tenancy [tenancy by the entirety] may be created even when the husband and wife are not the only grantees in the conveyance or beneficiaries of the devise, as when it is to a man and wife and another person, in which case the husband and wife would, prima facie, take a one-half interest only, which they would hold by entireties, while the third person would take the other half; and a like rule, that the husband and wife together take but one share, would apply, whatever the number of cotenants." 2 Tiffany, Law of Real Property (3d ed.), Sec. 431, p. 222.

Thus, in the present case, in the absence of any qualifying language, the parties to this lawsuit would have received a one-quarter interest in the property as tenants by the entirety as between themselves, and the three sons each would have received a one-quarter interest as tenants in common.

Under the common law an estate to husband and wife will ordinarily be held to create a tenancy by the entirety absent an intention to create a different estate. The existence of a tenancy by the entirety, therefore, becomes a question of intention, modified by the presumption that in the absence of an expression of a contrary intention the grantor will be held to have intended to create a tenancy by the entirety. 2 Tiffany, Law of Real Property (3d ed), Sec. 431, p. 221; 161 A.L.R. 457.

In Hoyt v. Winstanley, 221 Mich. 515, 191 N.W. 213 (1922), the Michigan Supreme Court, noting that the common law remains the law of Michigan, stated: "In this State, where the common law is unchanged by statute, a conveyance to husband and wife conveys an estate in entirety, but may create one in joint tenancy or in common, if explicitly so stated in the deed". Hoyt, supra, p. 518, 191 N.W. 213. The Court further stated that, to create an estate other than a tenancy by the entirety in a conveyance to a husband and wife, "the words must be sufficiently clear to negative the common law presumption that an estate by the entirety was intended". Hoyt, supra, p. 519, 191 N.W. 213. It is necessary, therefore, to analyze whether or not the qualifying terms "not as joint tenants in common, but as joint tenants with rights of survivorship" were sufficiently clear to negate the common law presumption that an estate by the entirety was created in the parties by the July 22, 1977, deeds.

In Hoyt, supra, a conveyance...