WEILER
v.
HEUPLE.
Docket No. 1,026.
Michigan Court of Appeals.
Decided October 25, 1966.James J. Kelley, Jr., for plaintiffs.
George W. Paxson (Lewis & Watkins, of counsel), for defendants.
QUINN, J.
As alleged tenants in common, plaintiffs filed complaint for partition of certain real estate in Dundee township, Monroe county, Michigan. Defendant Amy Heuple, individually and as administratrix of the estate of Theo Irish, appeared and answered denying that the plaintiffs or the other defendants owned any interest in the land involved and alleging ownership in herself individually and as administratrix aforesaid. In addition, she pleaded as affirmative defenses the statute of limitations,[*] laches and estoppel. Defendant Heuple moved for summary judgment pursuant to GCR 1963, 117. Plaintiffs answered this motion and filed their motion for summary judgment. The trial court granted plaintiffs' motion and denied defendant Heuple's.
The latter appeals raising 3 questions for decision, namely: the propriety of the trial court's construction *657 of the deed under which all parties claim an interest in the disputed property; the sufficiency of the affidavit filed in support of plaintiffs' motion for summary judgment; and whether the statute of limitations and laches bar plaintiffs' action.
April 10, 1913, the land in dispute was conveyed to Homer Irish and Vernie Irish. They were father and son. Following their names as grantees in the introductory paragraph, the deed contains the following language:
"Each to own the undivided one-half and not to be by survivor-ship,. as to Homer Irish but survivor-ship as to Vernie Irish."
The granting clause of the deed reads:
"unto the said parties of the second part, and to their heirs and assigns, forever, * * *."
The habendum clause reads:
"To have and to hold the said above described premises to the said parties of the second part, and to their heirs and assigns, to the sole and only proper use, benefit and behoof of the said parties of the second part, their heirs and assigns, forever."
Vernie's proper name was Lavern and he was one of three sons of Homer, the others being Earl, father of the plaintiffs, and Carl. Lavern married Theo, a sister of defendant Amy Heuple.
May 20, 1924, Homer Irish died. His estate was administered in Monroe county probate court with Lavern Irish as administrator. The inventory of the estate did not include the land here involved. A final account was filed January 21, 1925.
July 30, 1924, Lavern executed a quitclaim deed to Josephine Brunton conveying the land here involved. She reconveyed to Lavern and Theo, husband and wife, to create a tenancy by the entireties.
*658 From 1913 to Homer's death, the property was equally controlled and managed by Homer and Lavern and their wives. After Homer's death, Lavern and Theo managed and controlled the premises until Lavern's death, and Theo continued in control until her death. Sometime in the 1940's, Fern Weiler worked the farm but in what capacity is not shown.
The trial court construed the 1913 deed to Homer and Vernie as creating a tenancy in common, and we believe he did so properly. In force at the time was a statute designated as CL 1897, § 8826, presently CL 1948, § 554.44 (Stat Ann 1957 Rev § 26.44), which reads:
"All grants and devises of lands, made to two or more persons, except as provided in the following section, shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy." (The exception in the following section has no application to the case at bar.)
There is no express declaration of joint tenancy and without such declaration, a joint tenancy cannot be created. Atha v. Atha (1942), 303 Mich 611. In addition, to create a joint tenancy a written instrument of conveyance is required, which will produce unity of time, title, interest, and possession. Union Guardian Trust Company v. Vogt (1933), 263 Mich 330. The conveyance here involved did not create unity of title or interest in the grantees.
While there is serious doubt that plaintiffs' affidavit in support of their motion for summary judgment meets the requirements of GCR 1963, 117.3, as defined by GCR 1963, 116.4, because many of the statements therein are hearsay and would not be admissible in evidence, none of such objectionable statements affect the disposition of the case in view of our construction of the deed involved. Hence, if *659 the affidavit was held to be insufficient, it would not be grounds for reversal.
On the death of Homer Irish, plaintiffs became tenants in common with Lavern, since their father, Earl, predeceased Homer. We believe the rule stated in Taylor v. S.S. Kresge Company (1950), 326 Mich 580, is dispositive of defendant's claim that the statute of limitations and laches bar plaintiffs' action. The Supreme Court there adopted from Campau v. Campau (1880), 44 Mich 31, the rule:
"The presumption should be that the tenant in possession respects and recognizes the rights of his cotenants, until the contrary clearly appears; that the possession is rightful, and not to the exclusion of others having equal rights."
We find nothing in this record to overcome this presumption prior to the time plaintiffs filed this action.
Affirmed, with costs to plaintiffs.
HOLBROOK, P.J., and McGREGOR, J., concurred.
NOTES
[*] See CL 1948, § 609.1 (Stat Ann § 27.593). REPORTER.