298 N.W. 281 | Mich. | 1941
Lead Opinion
Walter E. Madill and wife held title as tenants by the entirety to a theatre building in Chesaning, Michigan. On October 28, 1935, Mr. Madill entered into a written lease of the building and certain equipment therein with Fred A. Graham for a term of five years and with an option for an extension of five years and also for purchase of the equipment. Upon the death of Mr. Graham on August 27, 1937, Vera Graham, his widow and defendant herein, continued to manage the theatre and for over two years Madill accepted the rent from her without objection. On September 28, 1939, Albert R. Arrand and wife, plaintiffs herein, fully cognizant of the lease, and after being told that it would be up to them to remove defendant, purchased the property. Both Mr. and Mrs. Madill joined in the conveyance to plaintiffs. Shortly thereafter, plaintiffs served notice to quit and instituted summary proceedings to recover possession of the premises from defendant. The justice of the peace, sitting as a circuit court commissioner, found defendant "guilty" of unlawfully holding possession. He held that the lease was invalid because it was not signed by the wife of Mr. Madill; also that the defendant was never appointed administratrix of the estate of Fred Graham, the original lessee, and *561
therefore could not claim rights under the lease as a defense. On appeal by Mrs. Graham, the trial judge held the lease invalid because it was for a term of more than three years and not joined in by the wife of the lessor, one of the tenants by entirety. He relied largely upon Nurmi v. Beardsley,
Neither husband nor wife alone can sever the tenancy by the entirety, or convey a moiety to defeat the title of the survivor. But it does not follow that, because leases for longer than three years are brought within the statutes relating to conveyances of real property by 3 Comp. Laws 1929, § 13309 (Stat. Ann. § 26.552),* a lease for a longer term than three years executed by the husband alone is therefore invalid for the period during his lifetime.
The right of the husband to control the tenancy by entirety is governed by the common law. When the married women's statute was enacted, 3 Comp. Laws 1929, § 13057 et seq. (Stat. Ann. § 26.161 et seq.), giving the wife a right to control and own a separate estate, the question arose whether the statute *562
abrogated the common-law rights of the husband in respect to the tenancy. Two leading cases involving this issue under similar statutes are Hiles v. Fisher,
Pray v. Stebbins, supra, held that the married women's statute did not change the incidents given the tenancy at common law. Judge Field wrote (pp. 223, 224):
"The rights of husband and wife in this estate must therefore be determined by the common law. By that law the right to control the possession of such an estate during their joint lives is in the husband, as it is when the wife is sole seised. 'Neither could convey during their joint lives so as to bind the other, or defeat the right of the survivor to the whole estate;' Pierce v. Chace,
Michigan followed the rule of Pray v. Stebbins and rejected the reasoning of Hiles v. Fisher, supra, *563
in the case of Morrill v. Morrill,
In Way v. Root,
"Neither a husband nor wife can alone convey or incumber the estate vested in them as tenants by entirety."
But, in regard to the husband's right to lease the property, he further stated (pp. 429, 430):
"The rights of husband and wife in such an estate are purely common-law rights, to be tested and interpreted by the rules of that law as they existed before the wife was emancipated as to her individual property interests. By the common law the husband controlled his wife's estate, and had the usufruct, not only of real estate standing in both their names, but of that sole seised by his wife, whether in fee simple, fee tail or for life. It remains the law that, while coverture continues, the husband has the control, use, rents, and profits of an estate by entirety. * * * He had a right to rent the property to others and collect the rent. * * * But he could lawfully collect rent from Way, and evict him in case of default, and Way could enforce a lease of the property given him by defendant alone. Pray v. Stebbins [supra]. We are well satisfied that defendant, being entitled to the rent, could maintain an action in his own name to collect it, and we think he is entitled to recover it as a counterclaim when sued by the party owing it, or his assign."
The inescapable conclusion is that when the court states that a husband cannot convey the tenancy by entirety alone, a conveyance that may divest the entire title is referred to, but it does not affect the validity of a lease during the lifetime of the husband. The anomalous character of the respective rights and liabilities of husband and wife in a tenancy by the entirety has been frequently commented upon. See American StateTrust Co. v. Rosenthal,
While appellees raise additional questions in their brief, they do not discuss them or the many collateral questions which must be considered in such discussion. The mere statement of a position without argument or citation of authority in support thereof is insufficient. See Dolby v. State HighwayCommissioner,
The further contention by appellees that the lease would become abrogated upon the sale of the property by the lessor to the plaintiffs is fully answered by the proviso in the lease that its covenants are binding upon the respective heirs, representatives and assigns of the parties.
Judgment reversed, with costs to appellants.
SHARPE, C.J., and BUSHNELL, BOYLES, CHANDLER, and McALLISTER, JJ., concurred with BUTZEL, J.
Concurrence Opinion
I concur in reversal on the ground that the lease for five years was valid, and upon the death of the lessee during the leasehold period the rights thereunder vested in his estate. His widow has continued in possession and no one having an interest in his estate has challenged her right to do so. Plaintiffs took conveyance of the property with full knowledge of the outstanding lease; and at the time they instituted summary proceedings they were not entitled to possession. That right was then vested in the estate of the original lessee. In summary proceedings, as in ejectment, a plaintiff must recover, if at all, on the strength of his own right of possession, not on the weakness of defendant's right. DeWar v. Juett,
"4. The court erred in holding that the lease is of no force and effect. * * *
"10. The court erred in ordering and adjudging that the plaintiffs have restitution and recover against the defendant possession of the premises in question."
For the reasons above noted the judgment of the circuit court which gave possession to plaintiffs was erroneous and should be reversed. Costs of both courts to defendant.
WIEST, J., concurred with NORTH, J.
Addendum
SHARPE, C.J., and BUSHNELL, BOYLES, CHANDLER, NORTH, STARR, WIEST, and BUTZEL, JJ., concurred. *566
