Hoyt v. Winstanley, No. 10.

• Court: Supreme Court of Michigan
• Writing for the Court: McDONALD
• Citation: 191 N.W. 213,221 Mich. 515
• Parties: HOYT v. WINSTANLEY et al.
• Docket Number: No. 10.
• Decision Date: 29 December 1922

221 Mich. 515
191 N.W. 213

HOYT
v.
WINSTANLEY et al.

No. 10.

Supreme Court of Michigan.

Dec. 29, 1922.

Appeal from Circuit Court, Oakland County, in Chancery; Frank L. Covert, Judge.

Bill by Hobart B. Hoyt, administrator with the will annexed of the estate of Alfred F. Wilcox, deceased, against Jasper Winstanley and others. Decree for defendants, and plaintiff appeals. Affirmed.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, and STEERE, JJ.

[191 N.W. 214]

Peter B. Bromley, of Pontiac, for appellant.

F. E. Rankin, of Detroit, for appellees Winstanley.

Corliss, Leete & Moody, of Detroit (Paul B. Moody, of Detroit, of counsel), for appellees Gibb.

McDONALD, J.

This bill is filed under section 12897, C. L. 1915, to determine the rights and equities of a judgment debtor in lands sold to satisfy an execution. On the 4th day of December, 1916, Alfred F. Wilcox recovered a judgment on a note against defendant Jasper Winstanley in the sum of $695.50 damages and costs. On the 15th of May, 1913, Mary M. Wilcox sold and conveyed a vacant lot in the city of Detroit to Jasper Winstanley and Elizabeth J. Winstanley, his wife, as joint tenants. To satisfy the execution issued on his judgment against Jasper Winstanley, Mr. Wilcox levied on this property on the 6th day of December, 1916. No further action was taken until April 2, 1919, when, without the consent of Mr. Wilcox and without payment or satisfaction, the sheriff released the levy for the reason, as stated in the release, that Jasper Winstanley had no interest in the land levied upon subject to execution.

The conveyance from Mary L. Wilcox of the lot in question was to ‘Jasper Winstanley and Elizabeth J. Winstanley, his wife, as joint tenants.’ It is claimed by the plaintiff that this deed did not create an estate in entirety, but one in joint tenancy only, and that Jasper Winstanley was the owner of a half interest in the property, which was subject to levy and sale on execution.

After the Winstanleys bought the lot they built a dwelling on it and made it their homestead until November 17, 1918, when they sold it to William H. Gibb and Sydnie E. Gibb, his wife, who, it is claimed, paid part of the consideration after the release by the sheriff and in reliance thereon.

Disregarding the release, plaintiff sold the land under his execution levy on November 29, 1919. Later he filed this bill to have a determination of Jasper Winstanley's interest. On the hearing the circuit judge dismissed the bill. Plaintiff appeals.

The following questions are involved: (1) Did Winstanley and wife, under the deed given by Mrs. Wilcox, take an estate in entirety or one of joint tenancy? (2) Could a valid sale be made after release of the levy by the sheriff? (3) Was the bill of complaint filed too late? (4) Was the sale void becuase made in violation of the statutes relating to homestead rights?

Did the deed from Mrs. Wilcox convey to Jasper Winstanley and wife an estate in entirety or in joint tenancy? At common law a conveyance to husband and wife gave to them a tenancy by entirety. 1 Cooley's Blackstone, bk. 2, p. 181. This common-law tenancy has been abolished in many states, but still exists in Michigan. Fisher v. Provin, 25 Mich. 347;Manwaring v. Pwell, 40 Mich. 371;Jacobs v. Miller, 50 Mich. 119, 15 N. W. 42.In re Appeal of Nellie Lewis, 85 Mich. 341, 48 N. W. 580,24 Am. St. Rep. 94, overruled Dowling v. Salliotte, 83 Mich. 131, 47 N. W. 225, in which it was held that estates in entirety were abolished by statute in this state.

Some courts have held that under the common law a husband and wife could not receive and hold an estate except by entirety. The better authority, however, is that they could hold as joint tenants or tenants in common if sufficiently described as such in the deed. 21 Cyc. p. 1198, and cases cited.

‘At common law husband...