Jones v. Green
Decision Date | 05 August 1983 |
Docket Number | Docket No. 62770 |
Parties | Dorothy J. JONES, Plaintiff-Appellee, v. James A. GREEN, Defendant-Appellant. |
Court | Court of Appeal of Michigan — District of US |
O'Rourke, Goldstein, Joseph & Kelly, P.C. by John R. Darin, II, Flint, for plaintiff-appellee.
Morton Leitson, P.C., by Tom R. Pabst, Flint, for defendant-appellant.
Before DANHOF, P.J., and V.J. BRENNAN and BAGULEY *, JJ.
Defendant appeals by leave granted from a trial court order denying his motion for partial summary judgment.
Plaintiff and defendant purchased a residence on January 20, 1978. The deed conveying the residence stated in pertinent part that the seller "conveys and warrants to James A. Green and Dorothy J. Jones, as joint tenants with full rights of survivorship and not as tenants in common * * * ". On August 4, 1981, plaintiff commenced the present action seeking, inter alia, to partition the property which she and defendant had purchased. On December 3, 1981, defendant moved for summary judgment under GCR 1963, 117.2(1), arguing that property conveyed to unmarried individuals as joint tenants with full right of survivorship and not as tenants in common cannot be partitioned under Michigan law. The trial court rejected defendant's arguments. Defendant now contends the trial court committed reversible error in denying his motion for partial summary judgment.
A motion for summary judgment pursuant to GCR 1963, 117.2(1) challenges the legal sufficiency of a plaintiff's claim and is to be considered by an examination of the pleadings alone. Spectrum Mfg. Corp. v. Bank of Lansing, 118 Mich.App. 25, 30, 324 N.W.2d 523 (1982). Both trial and reviewing courts must accept as true every well-pled allegation and any inference which may be fairly and reasonably drawn therefrom. Spectrum, supra, p. 30, 324 N.W.2d 523. The motion must be granted when a plaintiff's claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify the right to recovery. Spectrum, supra, p. 30, 324 N.W.2d 523; Romeo v. Van Otterloo, 117 Mich.App. 333, 337, 323 N.W.2d 693 (1982).
All land held jointly is generally subject to partition. M.C.L. Sec. 600.3304; M.S.A. Sec. 27A.3304. Henkel v. Henkel, 282 Mich. 473, 276 N.W. 522 (1937); Fuller v. Fuller, 123 Mich.App. 592, 332 N.W.2d 623 (1983). In Ames v. Cheyne, 290 Mich. 215, 287 N.W. 439 (1939), however, the Supreme Court altered this principle, holding that where land is conveyed to parties as "joint tenants and not tenants in common, and to the survivor thereof, parties of the second part", a party to the joint tenancy may not deprive any other party of his right to survivorship and, accordingly, partition may not be granted. In Ballard v. Wilson, 364 Mich. 479, 481-484, 110 N.W.2d 751 (1961), the Supreme Court reaffirmed Ames, stating:
(Footnotes omitted.) 364 Mich. 482-484, 110 N.W.2d 751.
See also Mannausa v. Mannausa, 374 Mich. 6, 130 N.W.2d 900 (1964); Rowerdink v. Carothers, 334 Mich. 454, 458-459, 54 N.W.2d 715 (1952); Beaton v. LaFord, 79 Mich.App. 373, 376, 261 N.W.2d 327 (1977); Anderson v. Richter, 54 Mich.App. 532, 534-537, 221 N.W.2d 251 (1974).
Plaintiff argues that the decisions in Ames v. Cheyne and Ballard v. Wilson do not apply here because those cases were decided before the enactment of M.C.L. Sec. 600.3304; M.S.A. Sec. 27A.3304. In...
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Albro v. Allen
...N.W.2d 751 (1961); Mannausa v. Mannausa, 374 Mich 6, 8, 130 N.W.2d 900 (1964); "with full rights of survivorship," Jones v. Green, 126 Mich.App. 412, 413, 337 N.W.2d 85 (1983). At the crux of this case is the distinction between the "joint tenancy with full rights of survivorship" and the o......