BEATON
v.
LaFORD
Docket No. 77-585.
Michigan Court of Appeals.
Decided October 25, 1977.*375 Fenlon, Askwith & Askwith, for plaintiff.
Before: QUINN, P.J., and BASHARA and D.E. HOLBROOK, JR., JJ.
PER CURIAM.
Plaintiff appeals from a trial court order denying a request for partition of certain real property.
At trial, plaintiff adduced evidence to show that she was persuaded to leave her employment and live with defendant by his false statements concerning his marital status and promise to marry plaintiff. Defendant allegedly stated that he was divorced from his previous wife. Plaintiff discovered this statement to be false, whereupon she ceased cohabiting with him. However, in the interim, the litigants acquired certain real property, taking title as tenants by the entireties. That property is the subject of this litigation.
Where a couple is not married, they cannot take an estate as tenants by the entireties. See Scott v Grow, 301 Mich. 226, 234; 3 NW2d 254 (1942). Should they attempt to take property as tenants by the entireties, the court will declare them to be either joint tenants or tenants in common. In the instant case the trial court declared the parties to be joint tenants and we cannot disagree. The historic unities of time, title, interest, and possession were present. Further, that the parties took title as tenants by the entireties expresses an apparent intent that their ownership should assume the form of joint tenants, albeit they are not legally entitled to the special incidents of the entireties form of ownership.
MCLA 600.3304; MSA 27A.3304 provides that a joint tenant may have his land partitioned. The Supreme Court, in Henkel v Henkel, 282 Mich. 473; 276 N.W. 522 (1937), ruled that when a party *376 requests partition the court is obligated to comply unless some superior equity exists that warrants refusal. If the lands cannot be physically divided without prejudicing the parties, then the court must sell the property and divide the proceeds. MCLA 600.3332; MSA 27A. 3332, Henkel, supra.
In the instant case, we can find no equities that would warrant a denial of partition. The fact that the parties took the property as tenants by the entireties does not evidence an intent on their part not to allow partition. Such an intent has only been found in cases where a joint tenancy is created, and the parties expressly declare that there is to be a right of survivorship. See Ballard v Wilson, 364 Mich. 479; 110 NW2d 751 (1961), Ames v Cheyne, 290 Mich. 215; 287 N.W. 439 (1939). In such cases, the express creation of a right of survivorship has been said to create life estates in the tenants with a remainder in fee simple to the survivor. Ballard, supra. Under these circumstances, the Court has ruled that a party cannot sell or partition his interest.
This Court believes that the rule enunciated in Ames and Ballard should be limited to cases involving joint tenancies where a right of survivorship has been expressly created. To rule otherwise would make the plaintiff's interest in the property practically inalienable. This Court favors the alienability of property.
Since defendant was married at the time he and plaintiff bought the land, his wife has the right to claim a dower interest in the property. However, her interest will not affect partition since MCLA 600.3340; MSA 27A.3340 gives a court the right to partition property in which a dower interest exists, even if the wife has not released her interest. Since the wife's interest attaches only to her husband's *377 share, on partition it will not reduce any amount which is due to plaintiff.
We also note that evidence of fraud has been presented to the trial court. In adjusting the relative equities of the litigants vis-a-vis their interests in the property, the trial court may take this factor into consideration. As a court of equity, effecting justice and equality among the parties, the court should not permit a party to profit from wrongful conduct.
Because this Court can find no reason to deny partition, it must reverse the trial court. This case is remanded for proceedings consistent with this opinion.
Reversed and remanded. Costs to plaintiff.