205 Mich. 180 | Mich. | 1919
Plaintiffs, husband and wife, file this bill to remove clouds upon the title to certain premises located in the city of Battle Creek. The bill makes numerous parties, including the unknown heirs of Melbourne E. Truitt, defendants. Upon petition, a guardian ad litem for these unknown heirs was appointed. From a decree quieting title, the guardian ad litem appeals. There is no claim that the decree curing certain formal defects of title was not properly entered. The controverted question revolving around the title of plaintiff Melbourne E. Truitt, the case necessitates only a statement of the facts pertinent to that question.
Plaintiff’s counsel does not and cannot seriously controvert the well recognized rule in this jurisdiction that a life tenant may not cut off the remainder man and acquire title in fee by purchase of outstanding incumbrances he is under legal obligations to pay, nor the further rule that where the life tenant is not un
“(11532) Sec. 14. Every future estate shall be void in its. creation, which shall suspend the absolute power of alienation for a longer period than is prescribed in this chapter; such power of alienation is suspended when there are no persons in being, by whom an absolute fee in possession can be conveyed.
“(11533) Sec. 15. The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section.”
“(11535) Sec. 17. Successive estates for life shall not be limited, unless to persons in being at the crea*183 tion thereof; and when a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto, shall be void, and upon the death of those persons, the remainder shall take effect, in the same manner as if no other life estate had been created.”
“(11537) Sec. 19. When a remainder shall be created upon any such life estate, and more than two persons shall be named as the persons during whose lives the estate shall continue, the remainder shall take effect upon the death of the two persons first named, in the same manner as if no other lives had been introduced.”
It was said by this court in the case of McInerny v. Haase, 163 Mich. 364, speaking through Mr. Justice McAlvay:
“The period of suspension is not determined by the fact that more than two lives were in being when the estate was created who by a contingency might share in its distribution, but by the number of life estates between the creation of the estate and its enjoyment in possession.”
The crucial question therefore in the instant case is, Did the life lease to Oliver Beauregard and Thersil, his wife, create an estate for two lives in being, two life estates, or but one? Was its duration measured by two lives or by only one, that of the survivor? That the estate created was an estate by entirety has been frequently held by this court. See Appeal of Lewis, 85 Mich. 340 (24 Am. St. Rep. 94), where several of the authorities are considered; and neither party has such right, title or interest in the lands, that by his or her sole act, may be incumbered or conveyed away* Ernst v. Ernst, 178 Mich. 100 (51 L. R. A. [N. S.] 317). Each is a tenant by entirety, and the survivor takes the whole estate. The duration of the estate is measured by the life of the survivor. It is neither shortened nor lengthened by the death of
It is true as contended by counsel that the equities are strong in plaintiff’s favor. But we cannot without violating settled rules of property extricate him from the position in which he has placed himself. The decree correcting formal defects will stand. The balance of the decree must be vacated. A decree will be here entered in conformity with this opinion. The appealing defendant will recover costs of this court.