undisputed that later, and within a few days, a regular replevin bond was tendered by the plaintiff herein, to the sheriff, and the surrender of the check demanded, but refused.

In any view of the case which we are able to take, on the face of this record, a verdict and judgment should have been directed for the plaintiff for the amount claimed. The judgment below is reversed and a new trial granted with costs to appellant.

OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, FELLOWS, and KUHN, JJ., concurred.

SANFORD v. BERTRAU.

1. HUSBAND AND WIFE-ESTATES BY ENTIRETIES-LAND SUBJECT TO LEVY.

Land held by husband and wife as tenants by entireties is not subject to levy under execution on judgment rendered against either husband or wife alone.

The right of survivorship is merely an incident of an estate by entirety, and does not constitute a remainder, either vested or contingent.

3. SAME

JOINT JUDGMENT-LAND SUBJECT TO LEVY.

A judgment rendered against husband and wife jointly may be satisfied out of an estate in land held by them as tenants by entireties, independent of homestead and statutory exemptions.

4. EXECUTION-JOINT OWNERS.

Real estate owned jointly by individuals is subject to levy and sale upon an execution running against such owners jointly, in the absence of homestead and statutory exemp. tions.

See notes in 9 L. R. A. (N. S.) 1026; 42 L. R. A. (N. S.) 555.

5. HUSBAND AND WIFE-JOINT JUDGMENT

- EXECUTION

- MARRIED

WOMEN-COMMON LAW DISABILITY-STATUTES. There is nothing in Act No. 158, Pub. Acts 1917, abrogating the common-law disability of married women in certain cases, to signify that a joint judgment against husband and wife in a suit based upon their fraud in the exchange of real estate may not be satisfied out of real estate held by them as tenants by entireties, independent of homestead and statutory exemptions.

Appeal from Mecosta; Brown, J., presiding. Submitted October 10, 1918. (Docket No. 31.) Decided December 27, 1918.

Bill by William M. Sanford and another against Louis F. Bertrau and another to quiet title to certain real estate. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

Cogger & Cogger and Broomfield & Worcester, for plaintiffs.

Travis, Merrick, Warner & Johnson (Butler & Everett, of counsel), for defendants.

STONE, J. The bill of complaint in this case was filed to remove an alleged cloud placed upon the title of certain real estate held by the entireties by the plaintiffs, by reason of the sale of the same upon execution in favor of the defendants herein, issued upon a joint judgment against the plaintiffs herein.

Counsel for plaintiffs and appellants state in their brief that the sole and only question presented is whether lands held by a husband and wife as tenants by the entirety are subject to levy and sale by virtue of a writ of fieri facias issued upon a joint judgment against husband and wife. The record shows that on January 7, 1918, in the circuit court for the county of Mecosta, in a suit at law involving the fraud of the defendants there pending, wherein Louis F. Ber

trau and Mary A. Bertrau were the plaintiffs, and William M. Sanford and Mary J. Sanford were defendants, a judgment was duly rendered and entered in favor of said plaintiffs and against the said defendants for $5,832, with costs of suit to be taxed; that after the rendition of the judgment, an execution was duly issued thereon and placed in the hands of the sheriff for service, and that on or about February 2, 1918, that officer, by virtue of said execution, made a levy upon the property described in the bill of complaint, and upon due notice sold the said premises on March 23, 1918, for the sum of $6,046.05 to the defendants herein, and gave to them the usual certificate of sale.

It is undisputed that the title of the plaintiffs herein to the real estate at the time of said levy was vested in them by virtue of a deed bearing date August 11, 1914, executed by Louis F. Bertrau and wife to said "William M. Sanford and Mary J. Sanford, his wife, jointly with the right of survivorship."

In dismissing the bill of complaint upon the hearing, the learned circuit judge seems, by the record, to have been influenced somewhat by the fact that the judgment had been rendered in a case where the defendants (the plaintiffs here) had been charged with fraud in obtaining title to the property levied upon, having in mind no doubt the rule that estates in entirety cannot be created at the expense of creditors, and held in fraud of their rights, as was held by this court in Newlove v. Callaghan, 86 Mich. 297 (24 Am. St. Rep. 123).

Upon this record, however, we think we should treat the case as one where a valid judgment had been obtained against husband and wife, and where lands held by them as tenants by the entirety have been levied upon and sold by virtue of the execution. There is no homestead question here involved, the property

levied upon and sold being business property, upon which were located a store and other buildings. It is stated by counsel, and we think correctly, that this question is a new one in this State, in so far as the holdings of this court are concerned. It is well settled in this State that land held by husband and wife as tenants by entirety is not subject to levy under execution on judgment rendered against either husband or wife alone. The subject of estates by the entirety has been considered in many aspects by this court, as will appear by reference to the following cases, where the earlier decisions have been referred to. Vinton v. Beamer, 55 Mich. 559. In speaking of the estate this court said it was an entirety.

"They both took the same estate, the same interest, and it could not be separated. The right of the one was the right of the other. Neither could by a separate transfer affect the rights of the other, or his own. What would defeat the interest of one would also defeat that of the other."

In Re Appeal of Nellie Lewis, 85 Mich. 340 (24 Am. St. Rep. 94), this court said:

"The estate created by this deed was not an estate in joint tenancy, but an estate in entirety. A joint tenancy implies a seisin per my et per tout, while an estate in entirety implies only a seisin per tout. 4 Kent. Comm. p. 362."

See cases there cited.

Dickey v. Converse, 117 Mich. 449 (72 Am. St. Rep. 568). This case reviews many of the earlier cases and is worthy of examination in this connection. Naylor v. Minock, 96 Mich. 182 (35 Am. St. Rep. 595). See, also, Morrill v. Morrill, 138 Mich. 112 (110 Am. St. Rep. 306, 4 Ann. Cas. 1100), where it is stated that the married women's act is not applicable to estates by entirety, Justice CARPENTER, in writing the unanimous opinion of this court, saying:

"I think it must be conceded that the decisions of this court have determined that this statute has no application to estates by entirety." Citing numerous

cases.

Many more cases, some of them still later in date, might be cited, but we think it unnecessary.

It is urged by counsel for plaintiffs and appellants that, before the death of either of the parties, each holds an estate similar in some respects to that of a contingent remainder, and that it has been held that a contingent remainder is not subject to execution. We think the better doctrine is that the right of survivorship is merely an incident of an estate by entirety, and does not constitute a remainder, either vested or contingent. Davis v. Clark, 26 Ind. 424 (89 Am. Dec. 471); Shinn v. Shinn, 42 Kan. 1 (21 Pac. 813, 4 L. R. A. 224).

It is also asserted by counsel that land held by entireties by husband and wife is not subject to an execution, and the following cases are cited: Carver v. Smith, 90 Ind. 222 (46 Am. Rep. 210); Dodge v. Kinzy, 101 Ind. 102. The first of these cases simply holds that land conveyed to husband and wife is not subject to the levy of an execution against either, while both are living. There the execution against the husband was levied upon the land. Nobody would dispute the correctness of that ruling. The case of Dodge v. Kinzy involved the question of a contract of suretyship of the wife, and her joining in a mortgage on property held by entireties, to secure the payment of an individual debt of the husband, and has no bearing upon the question we are discussing.

It is well settled that when a judgment is rendered against one of two tenants by entireties, a levy under execution on such judgment cannot be made on the real estate held by them as tenants by entireties. This is because of the peculiar nature of the estate heid