American State Trust Co. v. Rosenthal

237 N.W. 534 | Mich. | 1931

Plaintiff has a judgment against Isaac Rosenthal. Execution levy was made on property conveyed by Rosenthal and wife to defendant Fanny Freedman. Plaintiff filed bill in aid of execution to set aside the Freedman deed as in fraud of creditors. The bill also alleged that Rosenthal and wife owned several pieces of property as tenants by the entireties, that Rosenthal is entitled to the rents and profits therefrom, and prayed that a receiver be appointed to collect such rents and profits and apply them on the judgment. Motion was made for appointment of a receiver pending suit to collect rents from all the property described. The court denied the motion without stating reasons therefor.

The record does not show that defendant Freedman was served either with process or with notice of the motion, and the bill contains no allegations of the necessity for a receivership as against her. The motion as to her was properly denied.

In Dickey v. Converse, 117 Mich. 449 (72 Am. St. Rep. 568), it was held that crops raised on land owned by the entireties are not subject to execution levy on judgment against the husband. In Morrill v. Morrill, 138 Mich. 112 (110 Am. St. Rep. 306, 4 Ann. Cas. 1100), it was held that the husband has the exclusive right to dispose of growing crops and use the proceeds as he sees fit. In Way v. Root, 174 Mich. 418, it was held that the husband has the "control, use, rents, and profits of an estate by entirety," and may collect them by suit in his own name. The logical application of the ruling in Way v.Root would sustain the right of the husband's creditors to levy on the rents and profits. But, as is pointed out in Morrill v.Morrill, tenancy by entirety is itself anomalous, and the rulings on the rights thereunder are of the same character. The later cases do not overrule or modify Dickey v. Converse, but, on the contrary, carefully suggest that the husband's creditors have no remedy against the rents. In Morrill v. Morrill it was said:

"While the wife has such an interest in these crops that they cannot be taken on an execution against her husband, such interest does not interfere with his power of management, disposition, and control."

The courts in other States treat the tenancy and rights arising out of it in a variety of ways. Under the decisions of this court, the rents and profits of entirety property are not subject to levy by the husband's creditors, except in special instances provided by statute.

Affirmed, with costs.

BUTZEL, C.J., and WIEST, CLARK, McDONALD, POTTER, SHARPE, and NORTH, JJ., concurred.