Elson v. Elson

• Decision Date: 04 December 1928
• Docket Number: No. 145.,145.
• Citation: 245 Mich. 205,222 N.W. 176
• Parties: ELSON v. ELSON et al.
• Court: Michigan Supreme Court

245 Mich. 205

222 N.W. 176

ELSON

v.ELSON et al.

No. 145.

Supreme Court of Michigan.

Dec. 4, 1928.

Appeal from Circuit Court, Wayne County, In Chancery; Ira W. Jayne, Judge.

Suit by Ida Elson against Charles Elson and another. Decree for plaintiff, and defendants appeal. Reversed, and plaintiff's bill dismissed.

Argued before the Entire Bench, except POTTER, J.Joseph B. Beckenstein, of Detroit (John Sklar, of Detroit, of counsel), for appellants.

Abram Sapiro, of Detroit, for appellee.

FELLOWS, J.

Plaintiff is the widow of Hyman Elson; defendants are the executors named in his will together with his children, who with plaintiff are devisees and legatees under the will. Plaintiff and her husband held title by entireties to real estate in Detroit. Norris and Samuel Pelavin were friends of theirs engaged in building operations. The Pelavin brothers were sued, and their funds in the bank were tied up by writs of garnishment. One of them applied to Elson to become surety on release bonds. This he could not do without having title to the real estate put in him alone. Plaintiff readily consented to this, for she said: ‘We know him for a long time, and we ought to do it for him.’ The parol testimony as to the transaction which was received over objection tends to establish that Mr. Elson agreed to place the title to the property back as it was after the bond had been released; it also negatives fraud, accident or mistake. Before the Pelavin lawsuit ended Mr. Elson died with the title standing in his name. By this bill plaintiff seeks to have the deed set aside and defendants held to be holding as trustees for her.

There is no fraud, accident, or mistake in the case, none is claimed, and no proof tending to establish any or either of them. Under such circumstances parol testimony is inadmissible to establish a trust in real estate. Section 11975, C. L. 1915; Longe v. Kinney, 171 Mich. 312; 137 N. W. 119;Funk v. Engel, 235, Mich. 195, 209 N. W. 160.

In the main plaintiff's brief deals with the question of the validity of the deed of plaintiff to her husband. The cases cited are those familiar to the profession in which this court has uniformly held that neither the husband nor wife alone may sell, incumber, or in any way defeat an estate by the entireties. All of the cases cited by plaintiff's counsel deal with attempted conveyances to strangers, none of them deal with deeds inter se, and the language used in them, of course, has reference to cases then before the court. These cases proceed on the theory that one of the parties may not defeat the estate by his or her single act; that the concurrence of both is required. Where one spouse deeds directly to the other, both do act, one by giving and the other by accepting the deed. The diligence of defendants' counsel has produced but one case from this court, although numerous cases from other jurisdictions are cited where the question was squarely decided, and we have not been able to find any other. In Wilkinson v. Kneeland, 125 Mich. 261, 84 N. W. 142, it was held (quoting from the syllabus):

‘Defendant deeded land to complainant and wife, in which he owned only a half interest, and complainant alleged that he accepted the deed without knowledge of the fraud,...