Term
4.1
Problem A: John Doe, a married man, owned Blackacre subject to a life estate. Doe, as a married man, deeded Blackacre to Richard Roe. Doe’s wife did not sign the deed. Is Roe’s interest in Blackacre free of any dower of Doe’s wife? |
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Definition
Answer: No.
STANDARD: DOWER ATTACHES ONLY TO REAL PROPERTY IN WHICH THE HUSBAND WAS SEIZED OF AN ESTATE OF INHERITANCE DURING THE MARRIAGE. |
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Term
4.1
Problem B: John Doe, a married man, was the lessee of Blackacre under a 99-year lease. During the term of the lease, Doe, as a married man, assigned his interest in Blackacre to Richard Roe. Doe’s wife did not sign the lease. Is Roe’s interest in Blackacre free of any dower of Doe’s wife? |
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Definition
Answer: Yes. An estate of inheritance means a fee simple estate. An estate for a term for years is not an estate of inheritance.
STANDARD: DOWER ATTACHES ONLY TO REAL PROPERTY IN WHICH THE HUSBAND WAS SEIZED OF AN ESTATE OF INHERITANCE DURING THE MARRIAGE. |
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Term
4.1
Problem C: John Doe, a married man, was the lessee of Blackacre under a 99-year lease. During the term of the lease, Doe died testate. Doe’s widow elected to take dower in his estate. The fiduciary of Doe’s estate, acting under a testamentary power of sale, assigned Doe’s interest to Richard Roe. Is Roe’s interest in Blackacre free of the dower of Doe’s widow? |
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Definition
Answer: Yes.
STANDARD: DOWER ATTACHES ONLY TO REAL PROPERTY IN WHICH THE HUSBAND WAS SEIZED OF AN ESTATE OF INHERITANCE DURING THE MARRIAGE |
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Term
4.1
Problem D: John Doe, a married man, was the holder of a life estate in Blackacre. Doe, as a married man, conveyed his interest in Blackacre to Richard Roe. Doe’s wife did not join in the conveyance. Is Roe’s interest in Blackacre free of any dower of Doe’s wife? |
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Definition
Answer: Yes. Doe had no estate of inheritance to which dower could attach.
STANDARD: DOWER ATTACHES ONLY TO REAL PROPERTY IN WHICH THE HUSBAND WAS SEIZED OF AN ESTATE OF INHERITANCE DURING THE MARRIAGE.
Comment B: Other interests in real property to which dower will not attach, in addition to those set forth above, are tenancies by the entireties (Agar v Streeter, 183 Mich 600, 150 NW 160 (1914)); joint tenancies (see, Standard 4.4); estates in partnership (see, Standard 11.2); vendors’ interests in land contracts (see, Standard 4.2); vendees’ interests in land contracts (see, Standard 4.3); and oil and gas leasehold interests (Redman v Shaw, 300 Mich 314, 1 NW2d 555 (1942)). A wife is not entitled to dower in real property to which her husband held title in a fiduciary capacity (Sagendorph v Lutz, 286 Mich 103, 281 NW 653 (1938)). |
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Term
4.2
Problem A: John Doe, a single man, owned Blackacre in fee. Doe sold Blackacre on land contract to Charles Palmer. Later, Doe married. Doe deeded Blackacre to Palmer pursuant to the land contract. Doe’s wife did not sign the deed. Did Palmer acquire title to Blackacre free of the dower of Doe’s wife? |
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Definition
Answer: Yes. Although Doe’s interest in Blackacre was a fee simple during coverture, the sale on land contract effected an equitable conversion of his interest to personalty, rendering the dower statute inapplicable. The same result would follow if Doe, instead of conveying to Palmer in fulfillment of the land contract, had conveyed to some other person subject to the land contract.
STANDARD: A WIFE HAS NO DOWER IN REAL PROPERTY THAT HER HUSBAND OWNS IN FEE IF AT ALL TIMES DURING COVERTURE HIS INTEREST WAS SUBJECT TO AN EXECUTORY LAND CONTRACT. |
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Term
4.2
Problem B: John Doe, a single man, owned Blackacre. Doe sold Blackacre on land contract. Later, Doe married. The land contract was then terminated. Later, Doe deeded Blackacre to Simon Grant. Doe’s wife did not sign the deed. Did Grant acquire title to Blackacre free of the dower of Doe’s wife? |
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Definition
Answer: No. When the land contract was terminated, the equitable conversion ended and the dower of Doe’s wife attached to Blackacre.
STANDARD: A WIFE HAS NO DOWER IN REAL PROPERTY THAT HER HUSBAND OWNS IN FEE IF AT ALL TIMES DURING COVERTURE HIS INTEREST WAS SUBJECT TO AN EXECUTORY LAND CONTRACT. |
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Term
4.2
Problem C: John Doe, a single man, owned Blackacre. Doe sold Blackacre on land contract to Charles Palmer. Later, Doe married. After Doe died, his widow elected to take dower in his estate. The personal representative of Doe’s estate, upon receiving the balance secured by the land contract, deeded Blackacre to Palmer. Doe’s widow did not sign the deed. Did Palmer acquire title to Blackacre free of the dower of Doe’s widow? |
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Definition
Answer: Yes. Because at all times during coverture Doe’s title was subject to a valid executory land contract, his interest is regarded as personalty, passes to his personal representative and does not descend to his heirs, and is not an interest in real property to which dower can attach.
STANDARD: A WIFE HAS NO DOWER IN REAL PROPERTY THAT HER HUSBAND OWNS IN FEE IF AT ALL TIMES DURING COVERTURE HIS INTEREST WAS JUBJECT TO AN EXECUTORY LAND CONTRACT.
Comment: Although a wife has no dower in her husband’s real property that has at all times during the marriage been subject to an executory land contract, an examiner should require some evidence of record of the land contract to establish of record that a conveyance by the husband alone, either in fulfillment of the land contract or subject to the land contract, is free of the wife’s dower. |
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Term
4.3
Problem A: Charles Palmer, a single man, purchased Blackacre on land contract. Later, Palmer married. Palmer then conveyed his vendee’s interest in Blackacre to Simon Grant. Palmer’s wife did not join in the conveyance. Was Grant’s interest in Blackacre free of any dower of Palmer’s wife? |
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Definition
Answer: Yes. A land contract vendee’s interest in real property is not an estate of inheritance to which dower can attach.
STANDARD: A WIFE HAS NO DOWER IN HER HUSBAND'S REAL PROPERTY IF AT ALL TIMES DURING THE COVERTURE HIS INTEREST WAS THAT OF A LAND CONTRACT VENDEE. |
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Term
4.3
Problem B: Same facts as in Problem A, except that Palmer was married at the time he purchased Blackacre. Was Grant’s interest in Blackacre free of any dower of Palmer’s wife? |
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Definition
Answer: Yes.
STANDARD: A WIFE HAS NO DOWER IN HER HUSBAND'S REAL PROPERTY IF AT ALL TIMES DURING THE COVERTURE HIS INTEREST WAS THAT OF A LAND CONTRACT VENDEE. |
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Term
4.3
Problem C: John Doe, a single man, purchased Blackacre on land contract. Doe assigned his interest in Blackacre to Charles Palmer, a married man. Palmer then assigned his vendee’s interest in Blackacre to Simon Grant. Palmer’s wife did not join in the assignment. Was Grant’s interest in Blackacre free of any dower of Palmer’s wife? |
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Definition
Answer: Yes
STANDARD: A WIFE HAS NO DOWER IN HER HUSBAND'S REAL PROPERTY IF AT ALL TIMES DURING THE COVERTURE HIS INTEREST WAS THAT OF A LAND CONTRACT VENDEE. |
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Term
4.4
Problem A: John Doe and Richard Roe owned Blackacre as joint tenants. Doe and Roe deeded Blackacre to Lawrence Smith, describing themselves as married men. Their wives did not sign the deed. Did Smith acquire title to Blackacre free of the dower of the wives of Doe and Roe? |
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Definition
Answer: Yes.
STANDARD : A WIFE HAS NO INCHOATE DOWER IN REAL PROPERTY THAT HER HUSBAND AND ONE OR MORE OTHER PER SONS OWN AS JOIN TENANTS . |
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Term
| 4.4 Problem B: John Doe and Richard Roe owned Blackacre as joint tenants. Doe died leaving a widow. Later, Roe deeded Blackacre to Sally Smith, describing himself as a married man. Roe’s wife did not sign the deed. Did Smith acquire title to Blackacre free of the dower of the wives of Doe and Roe? |
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Definition
| Answer: No. Smith’s title is free of the consummate dower of Doe’s wife, but is subject to the inchoate dower of Roe’s wife. STANDARD : A WIFE HAS NO INCHOATE DOWER IN REAL PROPERTY THAT HER HUSBAND AND ONE OR MORE OTHER PERSONS OWN AS JOINT TENANTS . |
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Term
4.5
Problem: In connection with his purchase of Blackacre, John Doe, a married man, gave a purchase money mortgage of Blackacre. Mary Doe, his wife, did not sign the mortgage. The mortgage was later foreclosed and the redemption period expired. Was Mary Doe’s dower in Blackacre extinguished? |
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Definition
Answer: Yes.
STANDARD : THE LIEN OF A PURCHASE MONEY MORTGAGE EXECUTED BY A MARIED MAN ALONE HAS PRIORITY OVER HIS WIFE’S DOWER IN THE MORTGAGED REAL PROPERTY .
Comment: A mortgage is a purchase money mortgage if the mortgage proceeds are applied on the purchase price.
Note: See Standard 5.3 with regard to priority of purchase money mortgages over homestead rights. |
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Term
4.6
Problem: John Doe deeded Blackacre, designating himself as “a single man,” although at the time of the deed he was married to Mary Doe. Mary did not sign the deed. Does the grantee take title to Blackacre free of Mary’s dower? |
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Definition
Answer: No.
STANDARD: NOTWITHSTANDING THE DESIGNATION IN A CONVEYANCE OF A MALE GRANTOR AS “A SINGLE MAN” OR “AN UNMARRIED MAN,” IF HE IS A MARRIED MAN THE DOWER OF HIS WIFE SURVIVES THE CONVEYANCE UNTIL BARRED BY DEATH, DIVORCE, LAPSE OF TIME OR OTHERWISE.
Comment A: In the absence of record notice to the contrary, title examiners generally accept a statement in a conveyance that a male grantor is “single” or “unmarried” as establishing a rebuttable presumption of his unmarried status. See MCL 565.221, which provides for the filing of an affidavit as to the marital status of a male grantor whose marital status was not disclosed on a conveyance that had been accepted for recording.
Comment B: Title examiners generally accept a designation of a male grantor as “a widower” as equivalent to a designation as “single” or “unmarried,” although in other contexts a man may still be a widower notwithstanding his remarriage. See, e.g., In re Rhead’s Estate, 288 Mich 220, 284 NW 706 (1939), involving the former Michigan inheritance tax statute. The Committee considers the designation of a male grantor as “a single man” or “an unmarried man” preferable to the use of the term “a widower.” |
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Term
4.7
Problem A: John Doe, the sole owner of Blackacre, deeded of Blackacre as “a married man”. Doe’s wife, Mary, did not sign the deed. Mary Doe was a voluntary resident of Indiana at the time of the conveyance. Did Mary Doe have inchoate dower in Blackacre at the time of the conveyance? |
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Definition
Answer: No.
STANDARD: A WOMAN WHO IS A VOLUNTARY NON-RESIDENT OF MICHIGAN HAS NO INCHOATE DOWER IN THE REAL PROPERTY OF HER HUSBAND, WHETHER OR NOT HE IS A RESIDENT OF MICHIGAN. |
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Term
4.7
Problem B: Same facts as in Problem A, except that John and Mary Doe were voluntary residents of Iowa at the time of the conveyance. Did Mary Doe have inchoate dower in Blackacre at the time of the conveyance? |
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Definition
Answer: No.
STANDARD: A WOMAN WHO IS A VOLUNTARY NON-RESIDENT OF MICHIGAN HAS NO INCHOATE DOWER IN THE REAL PROPERTY OF HER HUSBAND, WHETHER OR NOT HE IS A RESIDENT OF MICHIGAN. |
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Term
4.7
Problem C: John and Mary Doe were residents of Michigan. John Doe, the sole owner of Blackacre, deeded of Blackacre as “a married man”. Doe’s wife, Mary, did not sign the deed. Mary Doe had been involuntarily committed to a mental institution in Indiana where she remained at the time of, the conveyance. Did Mary Doe have inchoate dower in Blackacre at the time of the conveyance? |
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Definition
Answer: Yes.
STANDARD: A WOMAN WHO IS A VOLUNTARY NON-RESIDENT OF MICHIGAN HAS NO INCHOATE DOWER IN THE REAL PROPERTY OF HER HUSBAND, WHETHER OR NOT HE IS A RESIDENT OF MICHIGAN.
Comment A: The recording of an affidavit to establish recorded evidence of the residence of persons named in deeds, wills and mortgages is permitted. After July 14, 1965, the affidavit must either include a description of the real property or incorporate the description by reference to a recorded instrument containing the description. MCL 565.451a and 565.451c.
Comment B: See MCL 558.21 and 700.2202, regarding the right of a non-resident wife to elect dower in Michigan real property of which her husband died seized of an estate of inheritance. |
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Term
4.8
Problem A: John Doe, a married man, owned Blackacre. Doe deeded Blackacre to Richard Roe. Doe’s wife, Mary, did not sign the deed. Later, Mary Doe deeded Blackacre to Roe, reciting in the deed her intention to bar her dower. Does Roe own Blackacre free of the dower of Mary Doe? |
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Definition
Answer: Yes.
STANDARD : A MARRIED WOMAN MAY BAR HER DOWER BY JOINING IN HER HUSBAND’S CONVEYANCE OF REAL PROPERTY OR BY A SUBSEQUENT CONVEYANCE TO THE THEN HOLDER OF THE INTEREST CONVEYED. |
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Term
4.8
Problem B: James Doe, a married man, owned Blackacre. Doe mortgaged Blackacre to Richard Roe, but Doe’s wife, Mary, did not sign the mortgage. Later, Mary Doe executed a mortgage of Blackacre to Roe, reciting in the mortgage her intention to bar her dower. Does Roe have a mortgage on Blackacre free of the dower of Mary Doe? |
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Definition
Answer: Yes.
STANDARD : A MARRIED WOMAN MAY BAR HER DOWER BY JOINING IN HER HUSBAND’S CONVEYANCE OF REAL PROPERTY OR BY A SUBSEQUENT CONVEYANCE TO THE THEN HOLDER OF THE INTEREST CONVEYED.
Note: See Standard 4.9 with regard to the barring of dower by written contract, agreement or waiver. |
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Term
4.9
Problem A: John Doe, a married man, and the sole owner of Blackacre, deeded Blackacre in 1993 to Richard Roe. Doe’s wife, Mary, did not sign the deed. Later, Mary executed a written instrument waiving her dower in Blackacre. The instrument was recorded. Did Roe then hold Blackacre free of the dower of Mary Doe? |
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Definition
Answer: Yes. However, if Roe had knowledge that fair disclosure had not been made to Mary or that she was the victim of fraud or duress, Mary’s dower would not be barred as to Roe, but would be barred as to a subsequent bona fide purchaser for value.
STANDARD : A MARRIED WOMAN AFTER FAIR DISCLOSURE, AND IN THE ABSENCE OF FRAUD OR DURESS, MAY WAIVE HER DOWER IN WHOLE OR IN PART BY A WRITEN CONTRACT, AGREMENT OR WAIVER, WHICH MAY BE SIGNED BY HER EITHER BEFORE OR AFTER MARIAGE . |
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Term
4.9
Problem B: John Doe, a married man and the sole owner of Blackacre, deeded Blackacre in 1995 to Richard Roe. Doe’s wife, Mary, did not sign the deed. In 1997, Mary signed an agreement with her husband waiving her dower in all real property which John Doe owned, previously owned, and which he might subsequently acquire. Fair disclosure was made to Mary and neither fraud nor duress was practiced on her. Later, John Doe acquired title to Greenacre and deeded Greenacre as a married man. Mary did not sign the deed. Still later, John Doe acquired title to Whiteacre and owned it when he died in 2001. Is the dower of Mary in Blackacre, Greenacre and Whiteacre barred? |
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Definition
Answer: Yes.
STANDARD : A MARRIED WOMAN AFTER FAIR DISCLOSURE, AND IN THE ABSENCE OF FRAUD OR DURESS, MAY WAIVE HER DOWER IN WHOLE OR IN PART BY A WRITEN CONTRACT, AGREMENT OR WAIVER, WHICH MAY BE SIGNED BY HER EITHER BEFORE OR AFTER MARIAGE . |
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Term
4.9
Problem C: John Doe, a married man and the sole owner of Blackacre, deeded Blackacre in 1993 to Richard Roe. Doe’s wife, Mary, did not sign the deed. In 1994, Doe acquired title to Greenacre and Whiteacre. In 1995, Mary Doe deeded Blackacre, Greenacre and Whiteacre to John Doe, reciting in the deed her intention to bar and waive her dower in Blackacre, Greenacre and Whiteacre. The deed was recorded. In 1996, Doe, as a married man, deeded Greenacre to Richard Roe. Doe owned Whiteacre when he died in 2001. Is the dower of Mary in Blackacre, Greenacre and Whiteacre barred? |
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Definition
Answer: Yes. The waiver is valid, whether or not Doe then owned Blackacre, Greenacre, and Whiteacre and whether or not he later conveyed them without Mary signing the deeds.
STANDARD : A MARRIED WOMAN AFTER FAIR DISCLOSURE, AND IN THE ABSENCE OF FRAUD OR DURESS, MAY WAIVE HER DOWER IN WHOLE OR IN PART BY A WRITEN CONTRACT, AGREMENT OR WAIVER, WHICH MAY BE SIGNED BY HER EITHER BEFORE OR AFTER MARIAGE.
Comment B: Dower may also be barred by a jointure settled on the wife before marriage. |
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Term
4.10
Problem A: John Doe, the owner of Blackacre, was the attorney-in-fact of Mary Doe, his wife, under a power of attorney authorizing him to execute and deliver on her behalf deeds and mortgages of any and all interests in real property she then owned or thereafter acquired. John and Mary Doe, by John Doe, as Mary Doe’s attorney-in-fact, deeded Blackacre. Did the grantee acquire Blackacre free of Mary Doe’s dower? |
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Definition
Answer: Yes.
STANDARD : A POWER OF ATTORNEY GIVEN BY A MARRIED WOMAN TO HER HUSBAND OR TO SOME OTHER PERSON NEED NOT SPECIFICALLY MENTION DOWER TO AUTHORIZE THE ATTORNEY-IN-FACT TO RELEASE OR SUBORDINATE HER DOWER. |
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Term
4.10
Problem B: John Doe, the owner of Blackacre, was the attorney-in-fact of Mary Doe, his wife, under a power of attorney authorizing him to execute and deliver on her behalf deeds and mortgages of any and all interest in real property she then owned or thereafter acquired. John Doe, designating himself as a married man, deeded Blackacre to Richard Roe but did not execute the deed on behalf of Mary. Later, as attorneyin-fact for Mary, John Doe deeded Blackacre to Roe, who still owned Blackacre. The later deed recited that it was given to bar Mary’s dower in Blackacre. Was Mary’s dower in Blackacre barred? |
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Definition
Answer: Yes.
STANDARD : A POWER OF ATTORNEY GIVEN BY A MARRIED WOMAN TO HER HUSBAND OR TO SOME OTHER PERSON NEED NOT SPECIFICALLY MENTION DOWER TO AUTHORIZE THE ATTORNEY-IN-FACT TO RELEASE OR SUBORDINATE HER DOWER. |
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Term
4.11
Problem: More than 25 years ago John Doe, a married man and the sole owner of Blackacre, deeded Blackacre. His wife, Mary, did not sign the deed. No claim of dower has been recorded. Is the title to Blackacre free of Mary Doe’s dower? |
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Definition
Answer: Yes.
STANDARD : TWENTY -FIVE YEARS AFTER REAL PROPERTY HAS BEEN CONVEYED BY A MARRIED MAN, HIS WIFE’S DOWER IS FOREVER BARRED UNLESS A CLAIM OF DOWER WHICH DESCRIBES THE REAL PROPERTY IN WHICH DOWER IS CLAIMED HAS BEEN RECORDED IN THE OFFICE OF THE REGISTER OF DEEDS OF THE COUNTY IN WHICH THE REAL PROPERTY IS LOCATED. |
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Term
5.1
Problem A: Richard Roe owned Blackacre and occupied it with his wife as a homestead. Roe, as a married man, deeded Blackacre in 1960 to Simon Grant. Roe’s wife did not sign the deed. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No. The Michigan Constitution of 1908, like that of 1850, required the signature of the wife on an alienation of land constituting a homestead.
STANDARD : A DEED OR ASSIGNMENT OF ANY INTEREST IN HOMESTEAD LAND EXECUTED BY A MARRIED MAN BEFORE JANUARY 1, 1964 (THE EFFECTIVE DATE OF THE MICHIGAN CONSTITUTION OF 1963) IS INVALID WITHOUT THE SIGNATURE OF HIS WIFE. |
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Term
5.1
Problem B: Richard Roe, a single man, purchased Blackacre from Joan Doe on land contract in 1959. Roe later married. In 1961, while Roe and his wife occupied Blackacre as a homestead, Roe assigned his vendee’s interest to Simon Grant. Roe’s wife did not sign the instrument of assignment. In 1962, Grant paid the balance owing under the land contract and Doe conveyed Blackacre to him. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No. Roe’s vendee’s interest in the land contract was subject to his wife’s homestead right. The interest could therefore not be alienated without the wife’s signature. The same result would follow if Roe had voluntarily surrendered his vendee’s interest to Doe.
STANDARD : A DEED OR ASSIGNMENT OF ANY INTEREST IN HOMESTEAD LAND EXECUTED BY A MARRIED MAN BEFORE JANUARY 1, 1964 (THE EFFECTIVE DATE OF THE MICHIGAN CONSTITUTION OF 1963) IS INVALID WITHOUT THE SIGNATURE OF HIS WIFE.
Comment A: A conveyance of a homestead is made invalid by the absence of the wife’s signature only if the conveyance would otherwise impair or destroy the homestead right. In Weaver v Michello, 193 Mich 572, 160 NW 612 (1916), it was held that if a married man, acting alone, conveyed a homestead to a straw man, who then conveyed the homestead to the married man and his wife, a tenancy by the entireties was thereby created.
Comment B: A wife who has never been a resident of Michigan can have no homestead in this state, even though her husband may have one
Comment C: This Standard deals with the effect of a conveyance of, or a contract to convey, a homestead. The Standard does not address the possible or partial invalidity of conveyances of, or contracts affecting, parcels of land which include, but which are in excess of, a 40-acre homestead, as are described in Engle v White, 104 Mich 15, 62 NW 154
Note: See Standard 5.4 regarding the validation of a conveyance of a homestead interest by a married man without the signature of his wife. |
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Term
5.2
Problem A: Richard Roe purchased Blackacre on land contract, and occupied it with his wife as a homestead. In 1973 Roe, as a married man, assigned his vendee’s interest to Simon Grant. Roe’s wife did not sign the instrument of assignment. Did Grant acquire Roe’s interest in Blackacre? |
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Definition
Answer: Yes.
STANDARD: A DEED OR ASSIGNMENT OF ANY INTEREST IN HOMESTEAD LAND (EXCEPT ENTIRETIES PROPERTY), EXECUTED BY A MARRIED MAN ON OR AFTER JANUARY 1, 1964 (THE EFFECTIVE DATE OF THE MICHIGAN CONSTITUTION OF 1963), IS NOT RENDERED INVALID BY THE ABSENCE OF THE SIGNATURE OF HIS WIFE. THE TITLE OF THE GRANTEE OR ASSIGNEE MAY, HOWEVER, BE SUBJECT TO THE DOWER OF THE WIFE. |
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Term
5.2
Problem B: Richard Roe owned Blackacre and occupied it with his wife as a homestead. In 1973 Roe, as a married man, conveyed Blackacre to Simon Grant by deed. Roe’s wife did not sign the deed. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No. Although the deed was valid to convey Roe’s interest to Grant, Grant’s interest was subject to the dower of Roe’s wife.
STANDARD: A DEED OR ASSIGNMENT OF ANY INTEREST IN HOMESTEAD LAND (EXCEPT ENTIRETIES PROPERTY), EXECUTED BY A MARRIED MAN ON OR AFTER JANUARY 1, 1964 (THE EFFECTIVE DATE OF THE MICHIGAN CONSTITUTION OF 1963), IS NOT RENDERED INVALID BY THE ABSENCE OF THE SIGNATURE OF HIS WIFE. THE TITLE OF THE GRANTEE OR ASSIGNEE MAY, HOWEVER, BE SUBJECT TO THE DOWER OF THE WIFE.
Authority: Since January 1, 1964, the effective date of the Michigan Constitution of 1963, there is no requirement that the wife sign an alienation of land constituting a homestead, title to which is vested in the husband.
Comment: Although after 1963 a married man holding title to homesteadland in his name alone may validly convey his interest in theland without the signature of his wife, the conveyance does notextinguish the dower of the wife. See, Standard 4.1. |
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Term
5.3
Problem A: Richard Roe acquired title to Blackacre in 1960, and occupied it with his wife as a homestead. Roe, as a married man, executed a mortgage describing Blackacre in 1961. Roe’s wife did not sign the mortgage. Was the mortgage valid? |
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Definition
Answer: No. However, the mortgage will be valid 25 years after it is recorded unless before the expiration of the 25 years a notice of invalidity is recorded in the office of the register of deeds in the county in which the homestead land is located.
STANDARD: A MARRIED MAN AND, SINCE APRIL 17, 1984, A MARRIED WOMAN, CANNOT, WITHOUT THE SIGNATURE OF THE OTHER SPOUSE, CREATE A VALID MORTGAGE UPON ANY INTEREST IN THE LAND WHICH CONSTITUTES THEIR HOMESTEAD, EXCEPT BY A MORTGAGE GIVEN TO SECURE ALL OR PART OF THE PURCHASE PRICE. |
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Term
5.3
Problem B : Richard Roe acquired title to Blackacre in 1960, and occupied it with his wife as a homestead. Roe, as a married man, executed a mortgage describing Blackacre in 1965. Roe’s wife did not sign the mortgage. Was the mortgage valid? |
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Definition
Answer: No. Although the limitation on a mortgage of a homestead provided in the Michigan Constitution of 1908 was not included in the 1963 Michigan Constitution, the limitation on a homestead mortgage given without the signature of the wife, provided in the Revised Judicature Act, applies to mortgages not given to secure all or a portion of the purchase price.
STANDARD: A MARRIED MAN AND, SINCE APRIL 17, 1984, A MARRIED WOMAN, CANNOT, WITHOUT THE SIGNATURE OF THE OTHER SPOUSE, CREATE A VALID MORTGAGE UPON ANY INTEREST IN THE LAND WHICH CONSTITUTES THEIR HOMESTEAD, EXCEPT BY A MORTGAGE GIVEN TO SECURE ALL OR PART OF THE PURCHASE PRICE. |
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Term
5.3
Problem C: Mary Doe acquired title to Blackacre in 1979, and occupied it as a homestead with her husband. On August 10, 1984, Doe executed a mortgage describing Blackacre. Doe’s husband did not sign the mortgage. Was the mortgage valid? |
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Definition
Answer: No.
STANDARD: A MARRIED MAN AND, SINCE APRIL 17, 1984, A MARRIED WOMAN, CANNOT, WITHOUT THE SIGNATURE OF THE OTHER SPOUSE, CREATE A VALID MORTGAGE UPON ANY INTEREST IN THE LAND WHICH CONSTITUTES THEIR HOMESTEAD, EXCEPT BY A MORTGAGE GIVEN TO SECURE ALL OR PART OF THE PURCHASE PRICE. |
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Term
5.3
Problem D: In connection with his purchase of Blackacre as an intended homestead, Richard Roe, a married man, executed a purchase money mortgage to the former owner. Roe’s wife did not sign the mortgage. Was the mortgage valid? |
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Definition
Answer: Yes. A mortgage is a purchase money mortgage if the proceeds are applied to the purchase price, irrespective of whether the vendor of the land is the mortgagee.
STANDARD: A MARRIED MAN AND, SINCE APRIL 17, 1984, A MARRIED WOMAN, CANNOT, WITHOUT THE SIGNATURE OF THE OTHER SPOUSE, CREATE A VALID MORTGAGE UPON ANY INTEREST IN THE LAND WHICH CONSTITUTES THEIR HOMESTEAD, EXCEPT BY A MORTGAGE GIVEN TO SECURE ALL OR PART OF THE PURCHASE PRICE. |
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Term
5.4
Problem: Richard Roe acquired title to Blackacre in 1957 and occupied it with his wife as a homestead. Roe, as a married man, executed and recorded a mortgage describing Blackacre in 1958. The mortgage was not a purchase money mortgage. Roe’s wife did not sign the mortgage. No claim of invalidity of the mortgage was recorded during the 25 years following the date of recording of the mortgage. In 1984 is the mortgage valid? |
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Definition
Answer: Yes.
STANDARD : A MORTGAGE OF HOMESTEAD LAND, ALTHOUGH INVALID WHEN EXECUTED BY ONE SPOUSE BUT NOT BY THE OTHER, BECOMES VALID AFTER IT HAS BEEN RECORDED FOR 25 YEARS IN THE OFFICE OF THE REGISTER OF DEEDS FOR THE COUNTY IN WHICH THE MORTGAGED LAND IS LOCATED, UNLESS A CLAIM OF INVALIDITY IS RECORDED DURING THE 25 YEARS FOLLOWING THE RECORDING OF THE MORTGAGE. A CONVEYANCE OF ANY INTEREST IN HOMESTEAD LAND, ALTHOUGH INVALID WHEN EXECUTED BY A MARRIED MAN BUT NOT BY HIS WIFE, BECAME VALID IF IT HAD BEEN RECORDED FOR 25 YEARS BEFORE JANUARY 1, 1964 (THE EFFECTIVE DATE OF THE MICHIGAN CONSTITUTION OF 1963), IF NO CLAIM OF INVALIDITY WAS RECORDED WITHIN 25 YEARS AFTER THE DATE OF RECORDING OF THE CONVEYANCE.
Comment A: The Michigan Constitution of 1963 does not include a provision invalidating mortgages or other alienations of homestead land without the wife’s signature. MCL 600.6023(1)(h), effective January 1, 1963, states that a mortgage (other than a purchase money mortgage) of homestead land is invalid when not executed by both spouses, but also provides for validation of the mortgage after it has been recorded for 25 years without the recording of any claim of invalidity. There is no similar provision addressing alienations of homestead land other than by mortgage. |
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Term
6.1
Problem: Blackacre was deeded to John Doe, an unmarried man, and Richard Roe. No other language was contained in the granting clause. Doe subsequently died. Richard Roe and Anna Roe, his wife, deeded Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No. Upon Doe’s death, his undivided one-half interest vested in his heirs or devisees because there was nothing in the granting clause to overcome the statutory presumption. The deed from the Roes to Grant conveyed only Richard Roe’s one-half interest.
STANDARD: A CONVEYANCE OR DEVISE TO TWO OR MORE PERSONS, UNLESS EXPRESSLY DECLARED TO BE IN JOINT TENANCY, IS BY STATUTORY PRESUMPTION CONSTRUED TO CREATE A TENANCY IN COMMON, EXCEPT IN THE CASE OF:
(A) A MORTGAGE; OR
(B) A CONVEYANCE OR DEVISE MADE IN TRUST OR TO PERSONAL REPRESENTATIVES OR TO A HUSBAND AND WIFE.
Comment: When two or more persons acquire an interest in land by inheritance from an intestate decedent, each takes his or her respective share in common, even in the case of inheritance by a husband and wife from their child. |
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6.2
Problem A: Blackacre was deeded to John Doe and Richard Roe, ‘as joint tenants” or ‘as joint tenants and not as tenants in common.” Doe subsequently died. Roe and his wife later deeded Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: A DEED OR DEVISE TO TWO OR MORE GRANTEES, OTHER THAN HUSBAND AND WIFE, “AS JOINT TENANTS” OR “AS JOINT TENANTS AND NOT AS TENANTS IN COMMON,” CREATES A JOINT TENANCY BECAUSE THE LANGUAGE USED CONSTITUTES AN EXPRESS DECLARATION SUFFICIENT TO OVERCOME THE STATUTORY PRESUMPTION THAT A DEED OR DEVISE CREATES A TENANCY IN COMMON UNLESS EXPRESSLY DECLARED OTHERWISE. |
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6.2
Problem B: Blackacre was deeded to John Doe and Richard Roe, “jointly” as the grantees. Doe subsequently died. Roe and his wife later deeded Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No. Ordinarily the word ‘jointly” alone is not a sufficiently express declaration to overcome the statutory presumption. The word ‘jointly” has been held to be ambiguous and to justify the admission of parol testimony as to the intent of the parties.
STANDARD: A DEED OR DEVISE TO TWO OR MORE GRANTEES, OTHER THAN HUSBAND AND WIFE, “AS JOINT TENANTS” OR “AS JOINT TENANTS AND NOT AS TENANTS IN COMMON,” CREATES A JOINT TENANCY BECAUSE THE LANGUAGE USED CONSTITUTES AN EXPRESS DECLARATION SUFFICIENT TO OVERCOME THE STATUTORY PRESUMPTION THAT A DEED OR DEVISE CREATES A TENANCY IN COMMON UNLESS EXPRESSLY DECLARED OTHERWISE. |
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6.2
Problem C: Charles Palmer and Flora Vale were deeded Greenacre as tenants by the entireties when in fact they were not married. Palmer then died. Later, Vale conveyed Greenacre to Simon Grant. Did Grant receive marketable title to Greenacre? |
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Definition
Answer: No. Under the common law rule only a husband and wife can hold title by the entireties and, absent a declaration in the deed or evidence of intent to create a joint tenancy, a conveyance to a man and woman not legally married establishes a tenancy in common. Parol evidence may be admitted in some circumstances to establish the intent to create a joint tenancy.
STANDARD: A DEED OR DEVISE TO TWO OR MORE GRANTEES, OTHER THAN HUSBAND AND WIFE, “AS JOINT TENANTS” OR “AS JOINT TENANTS AND NOT AS TENANTS IN COMMON,” CREATES A JOINT TENANCY BECAUSE THE LANGUAGE USED CONSTITUTES AN EXPRESS DECLARATION SUFFICIENT TO OVERCOME THE STATUTORY PRESUMPTION THAT A DEED OR DEVISE CREATES A TENANCY IN COMMON UNLESS EXPRESSLY DECLARED OTHERWISE. |
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6.3
Problem A: Blackacre was owned by John Doe and Richard Roe, “as joint tenants” or “as joint tenants and not as tenants in common.” Doe, a married man, deeded an undivided one-half interest in Blackacre to Simon Grant. Doe subsequently died leaving Roe surviving. Did Grant acquire marketable title to an undivided one-half interest in Blackacre? |
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Definition
Answer: Yes. Upon delivery of the deed from Doe to Grant, Grant and Roe became tenants in common.
STANDARD: A DEED FROM ONE OF TWO OR MORE JOINT TENANTS TO A THIRD PARTY SEVERS THE JOINT TENANCY AS TO THE INTEREST OF THE GRANTOR AND CONSTITUTES THE GRANTEE A TENANT IN COMMON WITH THE OTHER OWNER(S). |
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6.3
Problem B: Blackacre was owned by John Doe, Richard Roe and Edgar Poe “as joint tenants” or “as joint tenants and not as tenants in common.” Doe, a single man, deeded to Simon Grant. Subsequently Roe died leaving Poe surviving. Poe and his wife then deeded to Grant. Did Grant acquire marketable title to all interest in Blackacre? |
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Definition
Answer: Yes. Grant acquired an undivided one-third interest in common by the deed from Doe. Roe and Poe remained joint tenants as to an undivided two-thirds interest which, upon the death of Roe, vested in Poe and was later deeded to Grant.
STANDARD: A DEED FROM ONE OF TWO OR MORE JOINT TENANTS TO A THIRD PARTY SEVERS THE JOINT TENANCY AS TO THE INTEREST OF THE GRANTOR AND CONSTITUTES THE GRANTEE A TENANT IN COMMON WITH THE OTHER OWNER(S).
Comment: This Standard relates to the severance of a joint tenancy (see, Standard 6.2) and not to an attempted severance of a joint life estate with remainder to the survivor (see, Standard 6.4). |
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6.4
Problem A: Blackacre was deeded to Jane Doe and Ruth Roe “as joint tenants and to the survivor.” Doe later deeded to Simon Grant. Doe died leaving Roe surviving. Did Roe acquire marketable title to Blackacre? |
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Definition
Answer: Yes. The conveyance by Doe to Grant operated to convey both her life estate and her contingent remainder. However, Roe’s right to full title to Blackacre if she survived Doe was not divested by Doe’s conveyance. Because Doe predeceased Roe, the entire fee vested in Roe and Grant’s interest was terminated.
STANDARD: A DEED OR DEVISE TO TWO OR MORE PERSONS, OTHER THAN HUSBAND AND WIFE, “AS JOINT TENANTS WITH RIGHT OF SURVIVORSHIP,” “AS JOINT TENANTS AND TO THE SURVIVOR,” “AND TO THE SURVIVOR,” OR “OR TO THE SURVIVOR,” OR SOME VARIANT THEREOF, CREATES A JOINT LIFE ESTATE IN ALL OF THE GRANTEES WITH REMAINDER IN FEE TO THE SURVIVOR. THE RIGHT OF THE SURVIVING GRANTEE OR THE ASSIGNEE(S) OF THE GRANTEE TO FULL TITLE CANNOT BE DIVESTED BY ANY ACT OR OMISSION OF ANOTHER GRANTEE. |
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6.4
Problem B: Blackacre was deeded to Jane Doe and Ruth Roe “or to the survivor.” Doe deeded to Simon Grant. Later, Roe died, leaving Doe surviving. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes. Doe’s deed to Grant conveyed all her interest in Blackacre, consisting of her life estate and contingent remainder. Upon Roe’s death, the entire fee vested in Grant.
STANDARD: A DEED OR DEVISE TO TWO OR MORE PERSONS, OTHER THAN HUSBAND AND WIFE, “AS JOINT TENANTS WITH RIGHT OF SURVIVORSHIP,” “AS JOINT TENANTS AND TO THE SURVIVOR,” “AND TO THE SURVIVOR,” OR “OR TO THE SURVIVOR,” OR SOME VARIANT THEREOF, CREATES A JOINT LIFE ESTATE IN ALL OF THE GRANTEES WITH REMAINDER IN FEE TO THE SURVIVOR. THE RIGHT OF THE SURVIVING GRANTEE OR THE ASSIGNEE(S) OF THE GRANTEE TO FULL TITLE CANNOT BE DIVESTED BY ANY ACT OR OMISSION OF ANOTHER GRANTEE. |
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6.4
Problem C: Blackacre was deeded to Jane Doe and Ruth Roe “as joint tenants with right of survivorship.” Doe later obtained partition of the joint life estates held by Doe and Roe. Doe died leaving Roe surviving. Did Roe acquire marketable title to Blackacre? |
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Definition
Answer: Yes. Roe’s right to full title to Blackacre if she survived Doe was not divested by the partition of the joint life estates. Because Doe predeceased Roe, the entire fee vested in Roe upon Doe’s death.
STANDARD: A DEED OR DEVISE TO TWO OR MORE PERSONS, OTHER THAN HUSBAND AND WIFE, “AS JOINT TENANTS WITH RIGHT OF SURVIVORSHIP,” “AS JOINT TENANTS AND TO THE SURVIVOR,” “AND TO THE SURVIVOR,” OR “OR TO THE SURVIVOR,” OR SOME VARIANT THEREOF, CREATES A JOINT LIFE ESTATE IN ALL OF THE GRANTEES WITH REMAINDER IN FEE TO THE SURVIVOR. THE RIGHT OF THE SURVIVING GRANTEE OR THE ASSIGNEE(S) OF THE GRANTEE TO FULL TITLE CANNOT BE DIVESTED BY ANY ACT OR OMISSION OF ANOTHER GRANTEE. |
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6.5
Problem: Blackacre was deeded to John Doe and Mary Doe. Later, Mary Doe, as the survivor of herself and John Doe, conveyed Blackacre to Simon Grant by a deed to which a death certificate of John Doe was attached. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No. If an affidavit appeared of record showing that John Doe and Mary Doe were in fact husband and wife when they acquired title, title would be marketable in Grant.
STANDARD: A DEED OR DEVISE TO TWO PERSONS, WHO ARE IN FACT HUSBAND AND WIFE, CREATES A TENANCY BY THE ENTIRETIES, UNLESS A CONTRARY INTENT IS EXPRESSED IN THE DEED OR DEVISE.
Comment A: The recording of affidavits as to the marital status of persons named in deeds and wills is permitted. Since July 15, 1965, the affidavits must include a description of the real property involved by setting out the description in full or by incorporating the description by reference to a recorded instrument in the chain of title which contains a full and adequate description of the real property. The affidavits are prima facie evidence of the facts stated. MCL 565.451a and 565.451c.
Comment B: A conveyance to grantees, “as tenants by the entireties,” if the grantees are not, in fact, husband and wife, creates a tenancy in common absent an express declaration that a joint tenancy was intended. See, In re Kappler Estate, 418 Mich 237, 341 NW2d 113 (1983). Under appropriate circumstances, however, Michigan courts have held that the conveyance creates a joint tenancy.
Comment C: To create a tenancy in a husband and wife other than a tenancy by the entireties, the words of the deed or devise must be clear that the parties did not intend to establish a tenancy by the entireties. In Hoyt v Winstanley, a deed identifying the grantees as “Jasper Winstanley and Elizabeth J. Winstanley, his wife, as joint tenants,” was held to create a tenancy by the entireties. The Committee expresses no opinion as to what words in a deed or devise are sufficient to indicate that the parties did not intend to create a tenancy by the entireties.
Note: See Standard 6.2 with respect to creation of a joint tenancy. |
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6.6
Problem: Blackacre was deeded to Mr. and Mrs. James E. Deer, or to James E. Deer and wife. Later James E. Deer and Mary Deer, husband and wife, deeded Blackacre to J. Ray Brown. Did Brown acquire marketable title to Blackacre? |
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Definition
Answer: No. If an affidavit or other evidence appeared of record showing that the identity of the grantees in the first deed is the same as the identity of the grantors in the second deed, title would be marketable in Grant.
STANDARD: A DEED OR DEVISE TO TWO PERSONS, WHO ARE IN FACT HUSBAND AND WIFE, CREATES A TENANCY BY THE ENTIRETIES UNLESS A CONTRARY INTENT IS EXPRESSED, EVEN THOUGH THE DEED OR DEVISE DOES NOT STATE THE GIVEN NAME OF ONE SPOUSE.
Comment: The recording of affidavits as to the marital status and identity of persons named in deeds and wills is permitted. Since July 15, 1965 the affidavits must include a description of the real property involved by setting out the description in full or by incorporating the description by reference to a recorded instrument in the chain of title which contains a full and adequate description of the real property. The affidavits are prima facie evidence of the facts stated. |
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6.7
Problem A: Blackacre was deeded to James E. Deer and Mary Deer, husband and wife, and Catherine Lemon. Lemon deeded a one-third interest in Blackacre to J. Ray Brown. Later, James E. Deer and Mary Deer, husband and wife, deeded their interest to Brown. Did Brown acquire marketable title to Blackacre? |
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Definition
Answer: No. The deed to James E. Deer and Mary Deer, husband and wife, and Catherine Lemon created a tenancy in common, with the Deers, as tenants by the entireties, and Lemon each owning an undivided one-half interest. Because Lemon deeded only a one-third interest to Brown, she still held title to an undivided one-sixth interest.
STANDARD: IF THERE ARE SEVERAL GRANTEES IN A DEED, TWO OF WHOM ARE HUSBAND AND WIFE, IN THE ABSENCE OF A CONTRARY INTENT EXPRESSED IN THE DEED, THE HUSBAND AND WIFE ARE TREATED AS ONE PERSON AND TAKE ONE SHARE AS TENANTS BY THE ENTIRETIES, AS BETWEEN THEMSELVES, AND AS TENANTS IN COMMON WITH THE OTHER GRANTEES, EACH OF WHOM TAKES ONE SHARE. |
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6.7
Problem B: Blackacre was deeded to Cyrus Greenley and Mary Greenley, husband and wife, Edgar A. Poe and Nancy Poe, husband and wife, and Ruth Whitman. Whitman deeded an undivided one-fifth interest in Blackacre to Simon L. Grant. Later, the Greenleys and the Poes joined in a deed of Blackacre to Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No. The deed to Cyrus Greenley and Mary Greenley, husband and wife, Edgar A. Poe and Nancy Poe, husband and wife, and Ruth Whitman created a tenancy in common, with the Greenleys and the Poes, both as tenants by entireties, and Whitman each owning an undivided one-third interest. Because Whitman deeded only an undivided one seconds fifth interest to Grant, she still held title to an undivided two-fifteenths interest.
STANDARD: IF THERE ARE SEVERAL GRANTEES IN A DEED, TWO OF WHOM ARE HUSBAND AND WIFE, IN THE ABSENCE OF A CONTRARY INTENT EXPRESSED IN THE DEED, THE HUSBAND AND WIFE ARE TREATED AS ONE PERSON AND TAKE ONE SHARE AS TENANTS BY THE ENTIRETIES, AS BETWEEN THEMSELVES, AND AS TENANTS IN COMMON WITH THE OTHER GRANTEES, EACH OF WHOM TAKES ONE SHARE. |
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6.8
Problem A: Blackacre was owned by J. Ray Brown and Mary Brown, husband and wife, as tenants by the entireties. Later J. Ray Brown, a married man, deeded Blackacre to Mary Brown, his wife, who, in turn, deeded it to James E. Deer. Did Deer acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: IF TITLE TO REAL PROPERTY IS HELD IN TENANCY BY THE ENTIRETIES, A DEED FROM ONE SPOUSE TO THE OTHER IS EFFECTIVE TO TERMINATE THE TENANCY. |
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6.8
Problem B: Blackacre was owned by J. Ray Brown and Mary Brown, husband and wife, as tenants by the entireties. Later Mary Brown deeded Blackacre to J. Ray Brown, without expressing her intent in the deed to bar or waive her dower. J. Ray Brown, in turn, as a married man but without having Mary Brown join, deeded Blackacre to Dennis H. Bagley. Did Bagley acquire title to Blackacre free of the dower of Mary Brown? |
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Definition
Answer: No. Although the deed from Mary Brown to J. Ray Brown was effective to terminate the tenancy by the entireties and vest full title in J. Ray Brown, Mary Brown acquired inchoate dower which was not barred. If, however, Mary Brown had expressed her intent in her deed to J. Ray Brown to bar or waive her dower or had expressed the same intent in a separate contract, agreement or waiver, Bagley would have acquired title to Blackacre free of her dower.
STANDARD: IF TITLE TO REAL PROPERTY IS HELD IN TENANCY BY THE ENTIRETIES, A DEED FROM ONE SPOUSE TO THE OTHER IS EFFECTIVE TO TERMINATE THE TENANCY. |
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6.9
Problem A: Blackacre was owned by Edgar A. Poe and Mary Poe, husbandand wife, as tenants by the entireties. Mary Poe, acting alone,deeded Blackacre to Simon L. Grant. Subsequently Mary Poedied and Edgar A. Poe, as an unmarried man, deeded Blackacreto Paul Ingram. Did Ingram acquire marketable title toBlackacre free of any interest in Grant? |
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Definition
Answer: Yes. The same result would occur if the instrument executed byMary Poe alone had been a mortgage.
STANDARD: NEITHER SPOUSE, ACTING ALONE, CAN ALIENATE OR ENCUMBER TO A THIRD PERSON AN INTEREST IN THE FEE OF REAL PROPERTY HELD AS TENANTS BY THE ENTIRETIES. |
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6.9
Problem B: Blackacre was owned by James E. Deer and Mary Deer, husbandand wife, as tenants by the entireties. Mary Deer executed a quitclaim deed of Blackacre to Simon L. Grant. James E. Deer did not join. Subsequently, James E. Deer predeceased Mary Deer. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No. The quit claim deed was not effective to convey any interest. If the deed to Grant had been a warranty deed, it is possible that Mary Deer would be estopped to assert her title as survivor. The Michigan Supreme Court has held that, if one purports to convey by warranty deed real property which he or she does not own, any after-acquired interest inures to the benefit of his or her grantee, but the Court has not yet determined whether this principle applies to a warranty deed executed by only one tenant by the entireties who later becomes the survivor. The Committee therefore expresses no opinion as to the effect of a warranty deed under the facts stated.
STANDARD: NEITHER SPOUSE, ACTING ALONE, CAN ALIENATE OR ENCUMBER TO A THIRD PERSON AN INTEREST IN THE FEE OF REAL PROPERTY HELD AS TENANTS BY THE ENTIRETIES. |
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6.9
Problem C: Blackacre was owned by J. Ray Brown and Sarah Brown, husband and wife, as tenants by the entireties. In 1973, J. Ray Brown, acting alone, leased Blackacre to Les Freebie for a term of five years. The lease was recorded promptly. Was the lease valid? |
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Definition
Answer: Yes, but it was subject to being terminated if J. Ray Brown predeceased Sarah Brown before the expiration of the five-year term. Before the enactment of MCL 557.71, which became effective December 10, 1975, it had been held that the husband had the exclusive right to the management and control of entireties property and the exclusive right to income derived from the property and any crops grown there. The husband, acting alone, could enter into a valid lease of entireties property, subject only to the limitation that the lease would cease to be valid should the wife become the sole owner through the death of the husband.
STANDARD: NEITHER SPOUSE, ACTING ALONE, CAN ALIENATE OR ENCUMBER TO A THIRD PERSON AN INTEREST IN THE FEE OF REAL PROPERTY HELD AS TENANTS BY THE ENTIRETIES. |
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6.9
Problem D: Same facts as in Problem C, except that the lease was executed on January 2, 1999. Was the lease valid? |
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Definition
Answer: No. A lease of entireties property executed on or after December 10, 1975 must be signed by both husband and wife. MCL 557.71 provides that “A husband and wife shall be equally entitled to the rents, products, income, or profits, and to the control and management of real or personal property held by them as tenants by the entirety.” The Committee has not considered the constitutionality or the effect of MCL 557.71 with respect to a tenancy by the entireties created before that statute’s effective date.
STANDARD: NEITHER SPOUSE, ACTING ALONE, CAN ALIENATE OR ENCUMBER TO A THIRD PERSON AN INTEREST IN THE FEE OF REAL PROPERTY HELD AS TENANTS BY THE ENTIRETIES. |
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6.10
Problem A: On September 1, 1955, John Doe, a married man and the sole owner of Blackacre, delivered a deed describing Blackacre naming himself and Mary Doe, husband and wife, as grantees. Later John Doe died and Mary Doe delivered a deed describing Blackacre naming Simon Grant as grantee. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No, unless Mary Doe succeeded to all of John Doe’s interest through his estate. Because the first deed did not produce unity of time or title, it was ineffective to create a tenancy by the entireties. John Doe and Mary Doe became tenants in common. Consequently, an undivided one-half interest vested in John Doe’s heirs or devisees.
STANDARD: A JOINT TENANCY, A JOINT LIFE ESTATE WITH REMAINDER TO THE SURVIVOR, OR A TENANCY BY THE ENTIRETIES, COULD NOT BE CREATED BY A DEED DELIVERED BEFORE OCTOBER 14, 1955, IF THE GRANTOR WAS ALSO ONE OF THE GRANTEES. |
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6.10
Problem B: On September 1, 1955, John Doe, a single man and the sole owner of Blackacre, delivered a deed describing Blackacre naming John Doe and Richard Roe “as joint tenants with full right of survivorship and not as tenants in common.” Later Doe died and Roe and his wife deeded Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No. Because the first deed did not produce unity of time or title, it was ineffective to create a joint life estate with remainder to the survivor. John Doe and Richard Roe became tenants in common. Consequently, an undivided one-half interest vested in John Doe’s heirs or devisees.
STANDARD: A JOINT TENANCY, A JOINT LIFE ESTATE WITH REMAINDER TO THE SURVIVOR, OR A TENANCY BY THE ENTIRETIES, COULD NOT BE CREATED BY A DEED DELIVERED BEFORE OCTOBER 14, 1955, IF THE GRANTOR WAS ALSO ONE OF THE GRANTEES.
Note: See Standard 6.11 with respect to a deed delivered on or after October |
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6.11
Problem A: In 1973, John Doe, a married man and the sole owner of Blackacre, delivered a deed describing Blackacre naming himself and Mary Doe, husband and wife, as grantees. Later John Doe died and Mary Doe delivered a deed describing Blackacre naming Simon Grant as grantee. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: A JOINT TENANCY, A JOINT LIFE ESTATE WITH REMAINDER TO THE SURVIVOR, OR A TENANCY BY THE ENTIRETIES, MAY BE CREATED BY A DEED DELIVERED ON OR AFTER OCTOBER 14, 1955, IF THE GRANTOR IS ALSO ONE OF THE GRANTEES. |
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6.11
Problem B: In 1973, John Doe, a single man and the sole owner of Blackacre, delivered a deed describing Blackacre naming himself and Richard Roe as grantees, “as joint tenants and not as tenants in common” (or “as joint tenants and to the survivor”). Later Doe died and Roe and his wife delivered a deed describing Blackacre naming Simon Grant as grantee. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: A JOINT TENANCY, A JOINT LIFE ESTATE WITH REMAINDER TO THE SURVIVOR, OR A TENANCY BY THE ENTIRETIES, MAY BE CREATED BY A DEED DELIVERED ON OR AFTER OCTOBER 14, 1955, IF THE GRANTOR IS ALSO ONE OF THE GRANTEES. |
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6.12
Problem: Mary Doe and Ruth Roe held title to Blackacre as joint tenants with right of survivorship. Roe executed a deed describing Blackacre naming Simon Grant as grantee. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No, unless there is satisfactory evidence of record that Doe predeceased Roe.
STANDARD: WHEN A JOINT TENANCY, A JOINT LIFE ESTATE WITH REMAINDER TO THE SURVIVOR, OR A TENANCY BY THE ENTIRETIES HAS BEEN CREATED, A DEED FROM LESS THAN ALL TENANTS NAMED IN THE INSTRUMENT WHICH CREATED THE TENANCY SHOULD NOT BE ACCEPTED AS CONVEYING FULL MARKETABLE TITLE IN THE ABSENCE OF RECORD PROOF OF THE DEATH OF EACH TENANT WHO DOES NOT JOIN IN THE DEED.
Note: See Standard 6.13 as to the recording on or after October 11, 1947 of a deed containing a recital of survivorship. |
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6.13
Problem A: Blackacre was conveyed to John Doe and Mary Doe, husband and wife. Later, Mary Doe, as survivor of John Doe, executed a deed describing Blackacre which was recorded in 1977. No evidence of John Doe’s death, other than the recital, was recorded with or referred to in the deed. Was the deed entitled to be recorded? |
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Definition
Answer: No.
STANDARD: ON OR AFTER OCTOBER 11, 1947, A CONVEYANCE FROM A PERSON WHICH RECITES THAT THE GRANTOR IS THE SURVIVOR OF A DECEASED JOINT TENANT, JOINT LIFE TENANT WITH REMAINDER TO THE SURVIVOR, OR TENANT BY THE ENTIRETIES, IS NOT ENTITLED TO BE RECORDED UNLESS, FOR EACH FORMER OWNER INDICATED TO BE DECEASED, A CERTIFIED COPY OF THE DEATH CERTIFICATE OR OTHER RECORDABLE PROOF OF DEATH IS RECORDED WITH THE CONVEYANCE, OR EVIDENCE OF DEATH HAS BEEN RECORDED PREVIOUSLY AND REFERENCE IS MADE IN THE CONVEYANCE TO THE LIBER AND PAGE OF THE RECORDING. |
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6.13
Problem B: Blackacre was conveyed to John Doe and Mary Doe, husband and wife. Later, Mary Doe, as survivor of John Doe, executed a deed describing Blackacre which was recorded in 1977. The deed Mary Doe executed recited that John Doe’s death certificate had been recorded in Liber 1111 at Page 222 of the records of the register of deeds in the county in which Blackacre was located. Was the deed entitled to be recorded? |
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Definition
Answer: Yes.
STANDARD: ON OR AFTER OCTOBER 11, 1947, A CONVEYANCE FROM A PERSON WHICH RECITES THAT THE GRANTOR IS THE SURVIVOR OF A DECEASED JOINT TENANT, JOINT LIFE TENANT WITH REMAINDER TO THE SURVIVOR, OR TENANT BY THE ENTIRETIES, IS NOT ENTITLED TO BE RECORDED UNLESS, FOR EACH FORMER OWNER INDICATED TO BE DECEASED, A CERTIFIED COPY OF THE DEATH CERTIFICATE OR OTHER RECORDABLE PROOF OF DEATH IS RECORDED WITH THE CONVEYANCE, OR EVIDENCE OF DEATH HAS BEEN RECORDED PREVIOUSLY AND REFERENCE IS MADE IN THE CONVEYANCE TO THE LIBER AND PAGE OF THE RECORDING. |
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6.13
Problem C: Blackacre was conveyed to John Doe and Mary Doe, husband and wife. Later, Mary Doe, as survivor of John Doe, executed a deed describing Blackacre which was recorded in 1977. An affidavit of Ruth Roe was recorded with the deed executed by Mary Doe, stating that John Doe had died before the execution of the deed. Was the deed entitled to be recorded? |
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Definition
Answer: Yes.
STANDARD: ON OR AFTER OCTOBER 11, 1947, A CONVEYANCE FROM A PERSON WHICH RECITES THAT THE GRANTOR IS THE SURVIVOR OF A DECEASED JOINT TENANT, JOINT LIFE TENANT WITH REMAINDER TO THE SURVIVOR, OR TENANT BY THE ENTIRETIES, IS NOT ENTITLED TO BE RECORDED UNLESS, FOR EACH FORMER OWNER INDICATED TO BE DECEASED, A CERTIFIED COPY OF THE DEATH CERTIFICATE OR OTHER RECORDABLE PROOF OF DEATH IS RECORDED WITH THE CONVEYANCE, OR EVIDENCE OF DEATH HAS BEEN RECORDED PREVIOUSLY AND REFERENCE IS MADE IN THE CONVEYANCE TO THE LIBER AND PAGE OF THE RECORDING. |
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6.14
Problem A: Blackacre was owned by John Doe and Mary Doe, husband and wife, as tenants by the entireties (or as joint tenants). Later, they were divorced in Michigan. The judgment made no disposition of Blackacre but did contain the provision required by statute with respect to the dower of Mary Doe. Mary Doe died. Later,John Doe, a single man, deeded Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No. Grant acquired an undivided one-half interest as a tenant in common with Mary Doe’s heirs or devisees. The divorce destroyed the right of survivorship. The provision with respect to the dower of Mary Doe had no application to the interest formerly held as tenants by the entireties or as joint tenants.
STANDARD: TITLE TO REAL PROPERTY HELD BY HUSBAND AND WIFE AS TENANTS BY THE ENTIRETIES OR AS JOINT TENANTS VESTS IN THEM AS TENANTS IN COMMON IF THEIR JUDGMENT OF DIVORCE FAILS TO DISPOSE OF THE REAL PROPERTY, EVEN IF THE JUDGMENT IS ENTERED IN ANOTHER JURISDICTION. |
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6.14
Problem B: Blackacre was owned by John Doe and Mary Doe, husband andwife, as tenants by the entireties (or as joint tenants). Later, they were divorced in Iowa. The judgment made no disposition of Blackacre. Mary Doe died. Later, John Doe, a single man, deeded Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No.
STANDARD: TITLE TO REAL PROPERTY HELD BY HUSBAND AND WIFE AS TENANTS BY THE ENTIRETIES OR AS JOINT TENANTS VESTS IN THEM AS TENANTS IN COMMON IF THEIR JUDGMENT OF DIVORCE FAILS TO DISPOSE OF THE REAL PROPERTY, EVEN IF THE JUDGMENT IS ENTERED IN ANOTHER JURISDICTION. |
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6.15
Problem A: Blackacre was deeded to John Doe and Mary Smith, as tenants in common. Later, John Doe and Mary Smith married. Mary Smith Doe then deeded Blackacre to Simon Grant. John Doe did not execute the deed. Did Grant acquire marketable title to any interest in Blackacre? |
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Definition
Answer: Yes. Grant acquired marketable title to an undivided one-half interest.
STANDARD: WHEN PERSONS WHO ARE NOT HUSBAND AND WIFE OWN REAL PROPERTY AS TENANTS IN COMMON, AS JOINT TENANTS, OR AS JOINT TENANTS WITH RIGHT OF SURVIVORSHIP, THE OWNERSHIP IS NOT CONVERTED INTO A TENANCY BY THE ENTIRETIES BY THEIR SUBSEQUENT MARRIAGE. |
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Term
6.15
Problem B: Same facts as in Problem A, except that the first deed conveyed Blackacre to John Doe and Mary Smith as joint tenants with right of survivorship. Did Grant acquire marketable title to any interest in Blackacre? |
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Definition
Answer: Yes. Grant acquired marketable title to a joint life estate with John Doe and a contingent remainder interest in Blackacre. The remainder interest will vest in Grant if Mary Smith Doe survives John Doe.
STANDARD: WHEN PERSONS WHO ARE NOT HUSBAND AND WIFE OWN REAL PROPERTY AS TENANTS IN COMMON, AS JOINT TENANTS, OR AS JOINT TENANTS WITH RIGHT OF SURVIVORSHIP, THE OWNERSHIP IS NOT CONVERTED INTO A TENANCY BY THE ENTIRETIES BY THEIR SUBSEQUENT MARRIAGE. |
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Term
6.15
Problem C: Title to Blackacre, which had been held by John Doe and Mary Doe as tenants by the entireties, became vested in them as tenants in common by a judgment of divorce. Later, John Doe and Mary Doe remarried. Mary Doe then deeded Blackacre to Simon Grant. John Doe did not execute the deed. Did Grant acquire marketable title to any interest in Blackacre? |
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Definition
Answer: Yes. Grant acquired Mary Doe’s undivided one-half interest created by the judgment of divorce. The remarriage did not affect the tenancy in common created by the judgment.
STANDARD: WHEN PERSONS WHO ARE NOT HUSBAND AND WIFE OWN REAL PROPERTY AS TENANTS IN COMMON, AS JOINT TENANTS, OR AS JOINT TENANTS WITH RIGHT OF SURVIVORSHIP, THE OWNERSHIP IS NOT CONVERTED INTO A TENANCY BY THE ENTIRETIES BY THEIR SUBSEQUENT MARRIAGE. |
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