Field v. Steiner , 250 Mich. 469 ( 1930 )

In my opinion, Mrs. Steiner was not entitled to have a verdict directed in her favor. She knew that Erndwein was acting for herself and her husband in the sale of this property. He brought the plaintiff to her home, and they there talked about it, although she made no representation as to its value. He prepared the contract first executed, came to their home with it, and she and her husband accompanied him to the place where it was signed by them. In it they agreed "to pay to Albert Erndwein a commission of $800." If, by the false representation made, she and her husband as tenants by the entireties received a sum in excess of its value, represented by property conveyed to them by the plaintiff, in exchange therefor, she cannot avoid a joint liability with her husband to the plaintiff by reason of the marriage relation. Erndwein was not the agent of Aaron Steiner alone. Any contract relating to the sale of the property held by them by the entireties must have been made by them jointly. The formality of requiring the agency contract to be in writing was not required by Erndwein, but, when the contract of sale to plaintiff was executed, they both signed it and in it agreed to pay their agent who brought about the sale a commission of $800.

Husband and wife are the only persons who can be tenants by, the entireties. An estate thus created cannot be severed by the act of either. Neither of them has such an interest therein as may be conveyed to a third person. Any increase in value inures to the benefit of the joint estate. If the fraud here claimed be established, the value of the estate so held has been increased, and, if so, in my opinion, the liability to respond therefor is a joint one, and any judgment recovered may be satisfied out of any property held by them by the entireties.Sanford v. Bertrau, 204 Mich. 244. If not, and the husband owns no other property, the person defrauded is without remedy.

Had the fraud been committed by representations made by the plaintiff to Erndwein or the husband, both husband and wife could have joined in an action to recover the damages incident thereto. Aldrich v. Scribner, 146 Mich. 609. Surely, a married woman, who holds lands by the entireties jointly with her husband, should not be so favored in the law as to permit recovery of a joint judgment in such a case and be immune from liability with her husband where the joint estate has been benefited by the fraud. There was no error in submitting the question of the wife's liability to the jury.

I find no authority directly in point. Those cited by Mr. Justice McDONALD have reference to the liability of the separate estate of the wife. I concur, however, in reversal, and the granting of a new trial for the reasons stated by him.

CLARK, NORTH, and FEAD, JJ., concurred with SHARPE, J.