DeYoung v. Mesler

Citation130 N.W.2d 38,373 Mich. 499
Decision Date02 September 1964
Docket NumberNo. 34,J,34
PartiesHarold DeYOUNG, Arthur F. Harwood and Clarence Kraker, individually and as copartners d/b/a Omega Construction Company, Plaintiffs and Appellants, v. Clark MESLER and Marion Mesler, Defendants and Appellees. an. Term.
CourtSupreme Court of Michigan

Mitts, Smith & Haughey, Grand Rapids (Sherman H. Cone, Grand Rapids, of counsel), for plaintiffs and appellants.

Robert S. Tubbs, Grand Rapids, for defendants and appellees.

Before the Entire Bench.

O'HARA, Justice.

This case involves the attempt of plaintiffs, judgment creditors of defendant-husband alone to reach an asset in the nature of a debenture issued to defendants husband and wife in both their names.

The judgment against the husband was obtained on February 25, 1963. The debenture was issued to husband and wife on January 6, 1959. No question of a fraudulent transfer of any asset of the husband to husband and wife is involved. The trial court denied the creditor the relief sought.

A statement of facts, a narrative of testimony and the debenture have been stipulated as constituting the record. We need not set forth the instrument byt we mention that the 'debenture' is one of those 'evidences of indebtedness' specified in the statute hereinafter set out. The facts above recited are taken from the stipulation of fact and are adequate upon which to premise our decision.

Plaintiff-appellants base their statement of question squarely upon statute thus:

'Does P.A.1927, No. 212 (C.L.1948, § 557.151 [Stat.Ann.1957 Rev. § 26.211]) which specifically provides that debentures made payable to husband and wife shall be held by them in joint tenancy in the same manner as real estate held jointly by them, with full right of survivorship create, instead, a tenancy by the entireties in such property?'

We accept the question as stating the issue.

The involved statute is herewith set out:

'An Act to provide for the joint ownership by husband and wife in joint tenancy of certain classes of personal property with right of survivorship.

'All bonds, certificates of stock, mortgages, promissory notes, debentures, or other evidences of indebtedness hereafter made payable to persons who are husband and wife, or made payable to them as endorsees or assignees, or otherwise, shall be held by such husband and wife in joint tenancy unless otherwise therein expressly provided, in the same manner and subject to the same restrictions, consequences and conditions as are incident to the ownership of real estate held jointly by husband and wife under the laws of this state, with full right of ownership by survivorship in case of the death of either.'

The precise question is one of first impression before this Court. However, it was passed upon by the Court of Appeals for the Sixth Circuit. While the decision of that court is not binding upon us, we will herein refer to the reasoning and results of that opinion. For the appellants it is urged that the statute is very clear and its meaning self-evident. In substance, their argument is that since it is the settled law of this State that husband and wife may own realty in a joint tenancy, with or without survivorship rights, it follows that when the legislature used the words '* * * shall be held * * * in joint tenancy unless otherwise therein expressly provided' with respect to evidences of indebtedness, it meant exactly that. They urge further that the addition of the words in the statute 'with full right of ownership by survivorship in case of the death of either' clearly negatives any legislative intent to create a tenancy by the entireties, because survivorship is implicit in an entirety estate. They argue that the allusion thereto in the statute would be meaningless surplusage unless we construe the act in the manner for which they contend.

Per contra, appellees contend that such an interpretation is at complete variance with the legislative intent because it disregards completely the phraseology 'in the same manner and subject to the same restrictions consequences and conditions as are incident to the ownership of real estate held jointly by husband and wife under the laws of this state.'

We recognize what is ably argued by appellants that irrespective of presumptions to the contrary, real property in this State can be held by husband and wife as joint tenants when a clear intent to create a joint tenancy occurs.

We considered the question of this intent in Hoyt v. Winstanley, 221 Mich. 515, 191 N.W. 213. In that case the conveyance of realty in question was to 'Jasper Winstanley and Elizabeth J. Winstanley, his wife, as joint tenants.' The issue in the case was, as here, whether execution issued upon a judgment against the husband only could reach a severable, determinable interest of his. For a unanimous Court, Justice McDonald wrote:

'In view of the fact that estates by entirety are a modified form of joint tenancy, that the terms are sometimes used interchangeably, and that our statute treats them as a species of joint tenancy, it is my judgment that the words 'as joint tenants,' coupled with husband and wife in a conveyance to husband and wife, are not sufficient to indicate that an estate in joint tenancy was intended to be conveyed. To create an estate in joint tenancy in a conveyance to a husband and wife, the words used must be sufficiently clear to negative the Common-law presumption that an estate by entirety was intended. Estates in joint tenancy are not favored. Since the enactment of our statutes, all presumptions are against them. See C.L.1915, §§ 11562, 11563. We think it must be held under the circumstances of this case, that the deed to 'Jasper Winstanley and wife as joint tenants,' conveyed an estate by the entirety.'

The language of the cited case appears to require that in order not to create a tenancy by the entirety in realty conveyed to husband and wife, even the use of the words 'as joint tenants' is insufficient. The only alternative seems to be to use the words 'not as tenants by the entirety' when such is the intent of the conveyance.

Applying this test to the statute controlling of the instant case, the words 'in joint tenancy unless otherwise therein expressly provided, in the same manner and subject to the same restrictions, consequences and conditions as are incident to the ownership of real estate held jointly by husband and wife' of necessity mean in an estate by the entireties unless an intent to do otherwise is affirmatively expressed. The evidence of indebtedness here involved reads simply '* * * promises to pay to W. Clark Mesler and Marion Mesler, his wife.' It is conceded, as we noted, that the instrument, a debenture, is specifically mentioned in the statute.

We conclude therefore, as did the trial judge, and as did the Court of Appeals in Commissioner of Internal Revenue v. Hart (CCA 6th), 76 F.2d 864:

'In Michigan, the common-law rule that a conveyance to husband and wife creates a tenancy by the entirety has persisted except in respect to conveyances explicitly indicating that some other kind of tenancy is intended. Even the qualifying phrase 'as joint tenants,' while sufficient to create a joint tenancy in a conveyance to grantees generally, does not avoid the creation of an estate by the entirety when the grantees stand in the marital relation to each other.' (Citing Hoyt v. Winstanley, supra.)

Such being the case as to conveyances of realty under our settled law, we are constrained to hold that the language of the statute is indicative of a legislative intent to create in the evidences of indebtedness specified in the statute an estate by the entireties. It follows therefore that execution upon a judgment against the husband only, no fraud being involved, will not lie. The order denying the motion to reach an undivided 1/2 interest in the debenture is affirmed. No costs, construction of a statute being involved.

KAVANAGH, C. J., and DETHMERS, KELLY, BLACK, SMITH and ADAMS, JJ., concurred with O'HARA, J.

SOURIS, Justice (for reversal and remand).

In this State, while husband and wife can own real estate as tenants by the entirety as well as in common or as joint tenants (C.L.1948, §§ 554.44, 554.45 [Stat.Ann.1957 Rev. §§ 26.44, 26.45]; Hoyt v. Winstanley, 221 Mich....

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