Weaver v. Michello ( 1916 )

Kuhn, J.

(after stating the facts). It is clear, I think, that in contemplation of law no fee to the property in question rested for a single moment in the Shearers, as they were mere instruments used for the purpose of conveying title. There can be no doubt but that the entire transaction was made and executed for the purpose of creating a greater estate in the wife, Lydia Michello, and for her benefit.

The homestead provision in our Constitution is a wise provision, and our court has uniformly held that, In order to create a valid conveyance of the homestead, it must have the signature of the wife. But it was only in cases where giving validity to the deeds impaired or destroyed the homestead right. This court said, in Stevens v. Castel, 63 Mich. 111, 120 (29 N. W. 828, 831):

“A deed from the husband to a third person of a homestead for the mere purpose of transferring the title to the wife which is accomplished by the grantee at once executing a deed to her, is not void for want of her signature. The whole transaction should be treated in law as a conveyance from the husband to the wife.

“If the deeds were ever delivered and passed the title, Mullinnex was a mere instrument in the hands of the parties for the purpose, and the only purpose, of transferring the title from the husband to the wife. In such a case I do not think the deed to Mullinnex would be void without her signature. It should be treated — the whole transaction — in law as a simple conveyance from the husband to the wife. The object of the homestead provision in this respect is to protect the interest of the wife, and these conveyances inured only to her benefit, and were not in any sense against any of her rights, or of the family, in the homestead.”

So in this case the homestead rights were in no way legally affected by the execution of the two deeds of February 9th and remained with the defendant Lydia Michello and the family as well after the execution of the deeds as before. The obvious purpose of the constitutional provision (section 2 of article 14) is in no wise impaired, and I am therefore of the opinion that it should not be said that the deeds are void because of the constitutional provision which makes an alienation of the homestead invalid without the signature of the wife to the same.

The learned trial judge was of the opinion that the failure of Lydia Michello to join in the deed to the Shearers, and the failure thus to transfer to them her dower right, prevented the unity of title necessary to create an estate by entireties, and therefore a tenancy in common was created instead. I am of the opinion, however, that this conclusion is not well founded, for the reason that in an estate by the entireties the husband and wife are not seised by the moieties, but are seised by the entireties, or, as it has been said, “Each is seised of the whole,” and any inchoate right of dower which Lydia Michello may have had in the premises merged when she became seised of the whole estate by the deed from Shearer and wife.

The inchoate right of dower 'is not such a right that could be said to have given Lydia Michello a different title or estate than her husband, but it was a mere inchoate interest such as could be released or abandoned, and merged into the title when the dower and the fee combined in the same person. When Morris Michello died, Lydia Michello, being seised of the whole, took the whole estate, and her right of dower is therefore nonexistent and of no benefit to her.

In Pegg v. Pegg, 165 Mich. 228 (130 N. W. 617, 33 L. R. A. [N. S.] 166, Am. & Eng. Ann. Cas. 1912C, 925); Wright v. Knapp, 183 Mich. 656 (150 N. W. 315), and Michigan State Bank v. Kern, 189 Mich. 467 (155 N. W. 502), the formalities necessary to create a tenancy by the entireties were not observed. But in my opinion by the conveyance in question all the legal requirements to create an estate by the entireties were observed, and such an estate was therefore created.

The decree of the lower court will be therefore modified in accordance with this opinion. As this was a settlement of a family matter and a construction of the deeds was sought by both sides to the controversy, no costs were allowed by the lower court to either party as against the other. Such an order will likewise be made here.

Stone, C. J., and Bird, Moore, Steere, Brooke, and Person, JJ., concurred with Kuhn, J.