165 Mich. 228 | Mich. | 1911
The bill of complaint in this cause calls for the construction of a deed made by Davis Pegg to Mary C. Pegg, the complainant. Davis Pegg was the husband of complainant, and in the year 1897 he conveyed to her, by warranty deed in the usual form, an undivided one-half interest in and to the following described premises:
“ The west half (W. ½) of the southeast quarter (S. E. ¼) of section three (3), and the west half (W. ½) of the northeast quarter (N. E. ¼) of section ten (10), in Grand Traverse county.”
In the deed, between the granting and the habendum clauses, is inserted the following clause:
"The object and purpose of this deed is to convey to said second party such an interest in said land that the parties hereto will have an estate in entirety, and that the same shall survive and vest in the survivor as a full and complete estate.”
The deed was recorded in 1901, and in 1902 Davis Pegg died. Complainant is in possession of the premises, and claims title thereto on the theory that she and her husband owned the premises as tenants by entirety, and, she being the survivor, she takes the whole. It is claimed by the defendants, who are brothers and children of deceased brothers of Davis Pegg, that Davis Pegg and complainant were the owners of the premises as tenants in common, and that upon his decease an undivided one-half of the premises descended *to them. The defendants demurred to the bill, and the trial court made an order overruling it, and they have appealed from that order.
Davis Pegg conveyed an undivided one-half interest in said premises to complainant. He retained an undivided one-half interest therein. After this was done they had distinct titles, and were therefore tenants in common. The title remained that way until Davis Pegg died. The question is, then: What became of his undivided half ? Ordinarily it would descend to his heirs, the defendants ; and it did so descend, unless the clause which was
In order to own the whole, as survivor, she would have to be seised of the whole before his death. Whatever vested in her as survivor must have been owned by both her and her husband before his death, and each must have been seised of the whole. As neither one was seised of the whole, but both held by distinct titles, they could not have been tenants by the entirety. Neither were they tenants by entirety of the undivided half conveyed to her, because Davis Pegg reserved no interest in the undivided half he conveyed to complainant. The deed as a whole cannot be construed as creating a tenancy by entirety, because the law was not followed in creating it. At the common law, the unities of time, title, interest, and possession had to be observed in creating such an estate. Blackstone’s Commentaries, book 2, p. 182; 1 Washburn on Real Property (6th Ed.), p. 529. See suggestion in Bassett v. Budlong, 77 Mich. 338 (43 N. W. 984, 18 Am. St. Rep. 404).
The common law has remained unchanged in this respect and is now in force. In the attempt to create an estate by entirety, in the case under consideration, neither the unity of time nor title was observed. The estate was not created by one and the same act, neither did it vest in them at one and the same time. If the clause inserted can be said to be a part of the habendum of the deed, as is argued, then that part of the habendum must fail, on the ground that it seeks to enlarge an estate in common, which is granted, into an estate of entirety, without complying with the rules of law for the creation of such an estate. By reason of these considerations, the deed must be read as though the clause had been omitted. The deed created a tenancy in common between complainant and
The order of the trial court, overruling defendants’ demurrer, will be vacated and set aside, and an order entered sustaining the demurrer.-