Dowling v. Salliotte
| Decision Date | 14 November 1890 |
| Court | Michigan Supreme Court |
| Parties | DOWLING v. SALLIOTTE. |
Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.
Morgan E. Dowling, for appellant.
Stewart & Galloway, for appellee.
The question in this case is whether, where a deed is made to a man and woman who are in fact husband and wife, but such relationship does not appear upon the face of the deed, it creates a tenancy in common or a joint tenancy under How. St �� 5560, 5561. The conceded facts in the case are as follows The only fact not conceded on the trial was that George and Ellen Cicotte were husband and wife. Plaintiff made no proof of it, and, when the defendant offered proof of that fact, objected, on the ground that, as the relationship was not stated in the deed, it was incompetent and immaterial to prove such relationship aliunde. The plaintiff claims that the deed from John B. Cicotte et al. to George Cicotte and Ellen Cicotte created an estate in common, and that, when George Cicotte died, his heirs became the legal owners of an undivided half of said lands which they deeded to plaintiff. How. St. � 5560. The defendant claims that at the time John B. Cicotte et al. deeded said lands to George Cicotte and Ellen Cicotte, the latter were husband and wife, and, although not discribed as such in the deed, the fact may be shown by parol testimony; that the conveyance to them created an estate in joint tenancy under How. St. � 5561; and that, when George Cicotte died, Ellen Cicotte, as survivor, became the legal owner of all said lands, which she deeded to defendant. The testimony offered to show that George and Ellen Cicotte were husband and wife, was properly admitted. In fact, without such testimony, the plaintiff's case would have been fatally defective. He claims under a deed from the children of George and Ellen Cicotte as the heirs at law of George Cicotte. It was an essential part of his case therefore to prove that these children were born in lawful wedlock, and without such proof the defendant would have been entitled to a judgment. The court below was right in holding that the deed to George and Ellen Cicotte created in them an estate in joint tenancy, and that, upon the death of George, Ellen took the whole as survivor. The two sections of the statute above referred to read as follows: The plaintiff claims that section 5561 has no application to this case for two reasons: First. Because the fact is not recited in the deed to George and Ellen Cicotte that they were husband and wife. Second. Because sections 5560 and 5561, so far as they related to husband and wife, were repealed by implication by the married woman's act. How. St. � 6295. We cannot agree with the plaintiff in either of these views. The statute does not provide that in all grants and devises of land made to persons who are described in the conveyance as husband and wife they shall take as joint tenants. To give it such a meaning, would be to do violence to sound rules of construction. The intention of the statute was to declare that grants and devises made to two or more persons holding in fact certain relations to the estate, or towards each other, should create estates in joint tenancy. To say that the existence or non-existence of this fact must depend upon the recitals in a conveyance, would be to substitute form for substance. If the rule contended for is correct as applied to husband and wife, then it would apply also to trustees and mortgagees. It frequently happens that a trust is declared by the trustee by means of some writing outside of the conveyance to him, which may be in form a grant or devise in fee. A trust arises sometimes also by operation of law. In such cases would it be seriously contended that the statutes did not cover the trust-estate, because the conveyance to the trustee was silent as to the character of the grant? So also of a deed, in form...
To continue reading
Request your trial