DeYoung v. Mesler

Souris, J.

(dissenting). In this State, while bus-band and wife can own real estate as tenants by the entirety as well as in common or as joint tenants (CL 1948, §§ 554.44, 554.45 [Stat Ann 1957 Rev §§ 26.44, 26.45]; Hoyt v. Winstanley, 221 Mich 515; and Dutcher v. Van Duine, 242 Mich 477), as a general rule they cannot own personalty by the entirety. Wait v. Bovee, 35 Mich 425; Luttermoser v. Zeuner, 110 Mich 186; and Scholten v. Scholten, 238 Mich 679. Exceptions, however, have been recognized judicially as well as by legislation. For example, this Court has ruled that crops grown upon entirety realty are held by the entirety. Dickey v. Converse, 117 Mich 449, (72 Am St Rep 568) and Morrill v. Morrill, 138 Mich 112, 114, 115 (110 Am St Rep 306, 4 Ann Cas 1100); and, by statute, the proceeds from a mortgage or land contract taken upon the sale of realty owned by the entirety are received and held by the entirety. PA 1925, No 126 (CL 1948, § 557.81 [Stat Ann 1957 Rev §26.191]).

By statute, in 1927 our legislature provided that certain specified choses in action can be held by husband and wife “in the same manner and subject to the same restrictions, consequences and conditions as are incident to the ownership of real estate held jointly by husband and wife under the laws of this State, with full right of ownership by survivorship in case of the death of either.” PA 1927, No 212 (CL 1948, § 557.151 [Stat Ann 1957 Rev § 26.211] ). It is this statute which we construe in decision of this appeal and which, it is claimed, permits ownership by the entirety of the specified choses in action.

*506I do not read the statute to mean, as it is claimed, that all choses in action specified therein, when made payable to husband and wife, are held by them by the entirety unless otherwise expressly provided.1 I find it impossible to read the statutory words of joint tenancy, used as they are in the classical sense of joint tenancy of realty with survivorship rights, “as if” the legislature had intended, instead, to create a statutory presumption of title by the entirety. In the first place, as has been noted above, our State does not favor entirety ownership of personalty as, concededly, it does realty, and, absent some plausible reason therefor, it defies belief that the legislature would have intended such a sharp departure from our past legal history in this State. Secondly, had the legislature so intended, it seems to me beyond doubt that it would have expressed such intention by use of language which is appropriate therefor — that it would have said “tenancy [or, more appropriately, title] by the entirety”, instead of “joint tenancy” and instead of “held jointly by husband and wife * * * with full right of ownership by survivorship”. Its familiarity with such language of entirety ownership is demonstrated by PA 1927, No 210 (CL 1948, §§ 557.101, 557.102 [Stat Ann 1957 Rev §§ 26.201, 26.202]), adopted simultaneously with Act No 212 which we here construe. By that Act No 210, expressly stated to be declaratory of the common law, the legislature provided that any “tenancy by the entirety” in land may be terminated by conveyance from either spouse to the other. It hardly is to be doubted that had the legislature intended by Act No 212 also to create *507a statutory presumption that all bonds, certificates of stock, mortgages, promissory notes, debentures, or other evidences of indebtedness held by husband and wife as payees, indorsees, or assignees were to be held by them as entirety property, it would have stated such intention appropriately. Thirdly, as noted above, PA 1925, No 126 (CL 1948, § 557.81 [Stat Ann 1957 Rev § 26.191]), which likewise speaks appropriately in language of entirety, provided that promissory notes, mortgages, and land contracts taken upon the sale of realty held as tenants by the entirety shall be held by the vendors with all of the incidents of their prior entirety tenancy of the realty; but notwithstanding the very limited reach of Act No 126 — only to purchase money notes, mortgages, and land contracts taken upon the sale of realty held as tenants by the entirety — it is suggested that PA 1927, No 212, passed only 2 years later, raises a presumption of entirety ownership of all promissory notes, mortgages, and other evidences of indebtedness when made payable, or indorsed, or assigned, for whatever reason, to husband and wife — and this without reference to the earlier, more restrictive, act. I reject such suggestion as totally inconsistent with our State’s history of reluctance to restrict the right of spouses to take personalty, as contrasted with realty, by determinable moiety — a reluctance demonstrated by the very few circumstances, including 1 recognized by the legislature 2 years earlier, in which unitary ownership of personalty by husband and wife heretofore has been recognized judicially or legislatively in this State.

Whether our State’s policy in this regard is right or wrong is not before us for consideration in this case. Here we only construe a statute; we do not apply and develop our common law. Whatever our judgment of the wisdom of this legislative policy, *508aligning Michigan, with a diminishing minority of the States which generally deny the right to create “tenancies” by the entirety in personalty except as authorized by statute, we must abide by that policy until it is altered by statutory language more precisely indicative of a shift in policy than the language we are obliged to construe.2

I would construe the language of PA 1927, No 212 to create a presumption that the choses in action specified, when made payable to or held as indorsees or assignees by husband and wife, are held jointly with rights of survivorship rather than in common unless, of course, it is “otherwise therein expressly provided”. I find nothing in that act which permits creation of a unitary interest in personalty by husband and wife such as is'implicit in an entirety tenancy in realty and by which such interest among other characteristics, becomes immune to the satisfaction of either spouse’s sole debts. Hoyt v. Winstanley, supra. By PA 1925, No 126 certain choses in action taken upon the sale of realty held by the entirety do acquire such legal characteristics; but Act No 212, as I read.it, does not extend the policy objective of Act No 126 to all such choses nor to any others.

Accordingly, it is my judgment that the interest acquired by defendants in the debenture made payable to them as “W. Clark Mesler, and Marion K. Mesler, his wife”, was a joint interest with right of survivorship in each and not an interest in common nor an interest by the entirety. Therefore, defendant W. Clark Mesler’s judgment creditors were entitled to reach his determinable moiety interest there*509in and ihe trial court erred in denying them the relief they sought by proceedings following judgment as now permitted by chapter 61 of the revised judicature act (CLS 1961, § 600.6101 et seq. [Stat Arm 1962 Rev § 27A.6101 et seq.]) and by GCR 1963, 741 and 742.

The order should be reversed and the case remanded. Costs may be taxed.

In Hiller v. Olmstead (1931), 54 F2d 5, and Commissioner of Internal Revenue v. Hart (1935), 76 F2d 864, the circuit court of appeals for the sixth circuit so construed PA 1927, No 212. But in 1953, in Guldager v. United States, 204 P2d 487, the same court acknowledged that, absent a definitive holding by this Court, the issue was still open to a contrary view.

Por definitive expositions of the statutory and common law of England and the States on this subject, see Townsend, “Creation of Joint Rights between Husband and Wife in Personal Property”, 52 Mich L Rev 779 and 957 (1954), and annotation entitled, “Estate^ by Entirety in Personal Property”, 64 ALR2d 8 (1959).