Defendant appeals from a decree which determined that plaintiff was the sole owner of certain residence property in the city of Detroit and that the name of defendant as one of the grantees should be struck out of the deeds conveying said property.
In 1941 plaintiff acquired the purchasers' interest in a land contract covering the house and lot at 986 Krakow place in the city of Detroit. Payments on the contract were made from time to time, and on August 28, 1943, the full balance was paid and a deed executed and delivered, which described the grantees as follows: "Thomas W. Collins and Lee F. Collins, his wife." Plaintiff later claimed that his correct name was Tom Collins, and at his request another deed dated October 20, 1943, was executed and delivered, which designated the grantees as "Tom Collins and Lee F. Collins, his wife." Both deeds were duly recorded. *Page 147
Trouble apparently arose between these parties, and on November 27, 1944, plaintiff filed bill of complaint in the present suit, alleging that defendant was not his wife and that she had fraudulently caused herself to be named as one of the grantees in said deeds. He asked that her name be stricken from the deeds and that he be decreed to be the sole owner of the property. Defendant answered, denying the charge of fraud and that plaintiff was the sole owner of the property. While not affirmatively alleging that she was plaintiff's wife, defendant denied his allegation that she was not his wife. The trial judge held that defendant had perpetrated a fraud upon plaintiff by having her name inserted in the deeds as one of the grantees, and a decree was entered determining that plaintiff was the sole owner of the property and that defendant's name should be stricken from the deeds. Defendant's motion for a rehearing was denied, and she appeals. This being a chancery case, we reviewde novo.
Defendant claimed that she was plaintiff's common-law wife, although the record clearly indicates that, when the deeds in question were executed in 1943, she was married to one Charlie Norris. Plaintiff denied that defendant was his common-law wife and testified that at the time in question he was married to one Susie Collins. The record is convincing that the parties could not have been husband and wife at the time the deeds were prepared, and, therefore, the deeds did not create an estate by the entireties.
The next question is whether or not defendant fraudulently caused her name to be inserted in the deeds. Plaintiff was about 60 years old and was quite deaf. Neither of the parties was able to read or write to any extent. They were living in the house in question, and the testimony is in conflict as to their relationship. Plaintiff testified in substance *Page 148 that their relationship was not intimate and that defendant was only a roomer in the house. However, he admitted that on several occasions he sent the payments on the land contract to the real estate office by defendant, and that he did not give any instructions as to how the deeds were to be prepared. Defendant testified that she and plaintiff lived together as man and wife, that she gave him the wages she earned, and that the deeds were prepared in accordance with his instructions. A real-estate agent testified that when the final payment was made on the land contract and the first deed was prepared, both plaintiff and his attorney were present, and that the attorney directed that the names of both plaintiff and defendant be inserted in the deed as grantees. The second deed was prepared in accordance with instructions in a letter from plaintiff's attorney to the real-estate agent. Plaintiff claimed that as he could not read, he did not discover that defendant's name was inserted in the deeds as a grantee until several months after they had been recorded.
Plaintiff based his right to relief on the alleged fraud of defendant, and the burden was upon him to establish such fraud. We have repeatedly said that fraud will not be presumed and cannot be lightly inferred, but must be established by a preponderance of evidence. Fahey v. Pell, 310 Mich. 280. In the present case we find no evidence satisfactorily proving fraud on the part of defendant in connection with the insertion of her name in the deeds.
As plaintiff has failed to establish the alleged fraud, and as the parties were not husband and wife and could not take title by the entireties, we conclude that the deeds conveyed title to them as tenants in common. As it is impossible from the evidence in the record before us to ascertain the respective interests *Page 149 of the parties as tenants in common, and as neither party seeks an accounting or a determination of their interests, that matter cannot be adjudicated in the present case.
Other questions presented do not require consideration. The decree of the trial court is set aside, and a decree may be entered in this court dismissing plaintiff's bill of complaint. Defendant may recover costs of both courts.
CARR, BOYLES, REID, and NORTH, JJ., concurred with STARR, J.