Plaintiffs, as husband and wife, owned by the entirety a 47-acre farm in Monroe county, subject to a $600 mortgage. Plaintiff Fred L. Baker, while treasurer of a school district, used funds in his hands as such treasurer to help his son Russell buy an automobile. At the close of his term as treasurer the shortage so occasioned was discovered and repayment demanded. In the meantime the son Russell had married defendant Mary H. Baker. Plaintiffs claim that in order to meet the defalcation of school funds they deeded the farm to Russell and his wife under a written agreement by Russell and Mary to pay the sum due the district and when that was done to redeed the farm to plaintiffs. Defendant destroyed the written agreement.
There was dispute as to the nature of and contents of the destroyed agreement. The trial judge observed that the wilful destruction by defendant of the agreement was strong evidence that, had it not been destroyed, it would have sustained the claim of plaintiffs as to its contents and decreed redeeding of the farm by defendant to plaintiffs.
There would have been little purpose served in plaintiffs' deeding their farm to defendant and her husband on condition that they pay plaintiff Fred L. Baker's obligation to the school district and when *Page 30 that was paid to deed the farm back to plaintiffs. A reading of the record leads us to find that the written agreement at the time of execution of the deed by plaintiffs was to give plaintiffs a life lease of the farm. The subsequent foolish destruction of such agreement by defendant did not in any respect affect the obligation to give the life lease.
Defendant claims that in January, 1935, she was divorced from Russell F. Baker and the decree of divorce adjudged the parties owners of the farm as tenants in common and thereafter Russell, by quitclaim deed, dated June 13, 1938, conveyed his rights as a tenant in common to plaintiffs and submitted proofs in support thereof.
Of course, plaintiffs herein were not parties in any way to the divorce case and their rights to the farm have not been adjudicated thereby but defendant, by her claim in her cross bill and proofs thereunder, is owner of an undivided interest in the farm as a tenant in common with plaintiffs.
Upon hearing this case de novo we find from the record that plaintiff Fred L. Baker was financially unable to meet his liability for the unlawful use of the school funds and apprehension of action against him on account of his defalcation caused him and his wife to convey their farm, July 7, 1932, by warranty deed, subject to the $600 mortgage, to their son Russell and his wife upon their undertaking to pay his obligation to the school district and grant plaintiffs a life use of the farm. Defendant taught school and out of her salary as a teacher repaid the shortage, as appears by the following receipt, signed by three of the school officers:
"Dundee May 26-33
"Received of Mrs. Mary Baker the sum of (Seven hundred thirty-three $733) to pay the shortage in *Page 31 Fred Baker's account as Treasurer of School Dist. #6 Dundee."
Defendant, as a tenant in common, by cross bill seeks partition of the premises. Before she became a tenant in common she, as a necessary party, joined in the life lease of the premises to plaintiffs. Defendant, as a tenant in common, may have partition in accordance with the provisions of the statute on that subject, 3 Comp. Laws 1929, § 14995 (Stat. Ann. § 27.2012), but whether by division or sale it must be in full recognition and preservation of plaintiffs' life lease and use without any accounting therefor.
Under this record we cannot work out the procedural details of statutory partition and for that purpose the case is remanded to the circuit court.
The decree in the circuit court is reversed and a decree will be entered in this court requiring the defendant to execute and deliver to plaintiffs a life lease covering all her interests in the farm. Plaintiffs will recover costs.
STARR, C.J., and NORTH, BUTZEL, BUSHNELL, SHARPE, BOYLES, and REID, JJ., concurred. *Page 32