ROBIN E ALLEN V DAVID C BLUE
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STATE OF MICHIGAN
COURT OF APPEALS
ROBIN E. ALLEN and LAURIE MOORE,
UNPUBLISHED
August 31, 1999
Plaintiffs-Appellees,
v
DAVID C. BLUE, Individually and as Personal
Representative of the Estates of BEULAH ANN
BLUE, deceased, and ROBERT VIVIAN BLUE,
deceased,
No. 206891
Macomb Probate Court
LC No. 96-148474 CK
Defendant-Appellant.
Before: Doctoroff, P.J., and Markman and J.B. Sullivan*, JJ.
PER CURIAM.
This is an appeal from the final order in an action brought in Macomb Probate Court seeking to
quiet title and determine the parties’ respective rights with regard to certain real property on Harsen’s
Island in St. Clair County. The probate court determined that the disputed property was owned by a
tenancy in common, with plaintiffs owning one-half of such tenancy as “joint tenants with full rights of
survivorship” and the remaining one-half being owned by defendant and his brother as tenants in
common. Thereafter, the probate court granted plaintiff s’ motion for summary disposition based on the
court’s lack of subject matter jurisdiction over the unresolved issues of litigation. Defendant now
appeals as of right. We affirm in part, reverse in part, and remand.
Robert and Winifred Blue were married in 1949 and had two daughters (plaintiffs) by that
union. In 1960, when plaintiffs were seven and nine years old, Robert and Winifred entered into a land
contract to purchase cottage property on Harsen’s Island. On December 13, 1962, in contemplation of
divorce, Robert and Winifred entered into a property settlement agreement which, among other things,
conveyed Winifred’s interest in the cottage to Robert, to be held “in trust for the minor children of the
parties” (plaintiffs). The next month, Robert and Winifred were divorced by a judgment that
incorporated the property settlement agreement by reference. Later that year, Robert married Beulah
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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Ann, who had a daughter of her own by a previous marriage. Subsequently, Robert and Beulah had
two sons together – defendant and Bryan.
On December 30, 1974, after having paid off the land contract, Robert Blue received from the
vendors a warranty deed conveying the cottage property to “Robert V. Blue and Winifred Blue,
husband and wife.” On December 9, 1975, Robert recorded the warranty deed, the property
settlement agreement, the judgment of divorce, and a quitclaim deed purporting to convey the cottage
property from himself to “Robert V. Blue and Beulah A. Blue, husband and wife.” Robert died
intestate on July 21, 1983, but his estate was not probated at that time. On February 20, 1984, Beulah
executed a quitclaim deed purporting to convey the cottage from herself to “Beulah A. Blue, Bryan V.
Blue, and David C. Blue as joint tenants with right of survivorship.” Beulah died on May 27, 1995,
leaving a will that attempted to devise the cottage property to defendant. Defendant was appointed the
personal representative of both his parents’ estates.
Plaintiffs filed suit in Macomb Probate Court, where the estates were still open, seeking to quiet
title to the cottage in themselves as sole owners and to recover mesne profits from defendant, as well as
several other forms of relief with regard to the estates of Robert and Beulah Blue. Thereafter, plaintiffs
moved for partial summary disposition, pursuant to MCR 2.116(C)(10), regarding the quiet title count
in their complaint. Plaintiff s argued that: (1) Robert’s quitclaim conveyance of the property was null
and void because it was in derogation of his duties as a trustee; and (2) plaintiff s held their beneficial
interest in the property as joint tenants with Robert’s interest, and upon his death they came into
complete ownership by virtue of survivorship. Defendant opposed plaintiff s’ motion and countered
with his own motion for partial summary disposition, pursuant to MCR 2.116(C)(10) and MCR
2.116(I)(2), arguing that plaintiffs’ claims to the property were barred by both the statute of limitations
and by laches.
At a subsequent hearing, the probate court ruled that a one-half interest in the property had
been placed in trust for plaintiffs and that Robert’s quitclaim conveyance to himself and Beulah only
transferred the one-half interest that he held individually. The court indicated that plaintiffs could look to
recover rental if they were allowed it, and that defendant was entitled to pursue compensation for
expenses incurred in preserving plaintiffs’ one-half interest. The written order, prepared by plaintiffs’
counsel, stated that the property was owned by a tenancy in common, with plaintiff s owning one-half
such tenancy as “joint tenants with full rights of survivorship” and with the other one-half owned by
David Blue and Bryan Blue “as tenants in common.” The order also stated that the quitclaim
conveyances of the property executed by Robert Blue and Beulah Blue respectively, were null and void.
Prior to a scheduled trial, the parties reached a settlement as to all issues except for those
relating to the cottage property as between the parties in their individual capacities. An order dismissing
the parties in their representative capacities1 and allowing amendment of the pleadings to state claims
relevant to the cottage property was entered June 14, 1997. After defendant filed a counterclaim
seeking an equitable lien against the cottage property and/or contribution from plaintiffs for expenditures
in maintaining and improving it, plaintiffs moved to dismiss the remaining action based on the court’s lack
of subject matter jurisdiction. After a hearing held August 20, 1997, the probate court agreed that it
lacked subject matter jurisdiction over the unresolved issues.
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On appeal, defendant first argues that the probate court should not have, by summary
disposition, granted a one-half interest in the property to plaintiffs, because the statute of limitations and
the doctrine of laches should have entitled him, by summary disposition, to sole ownership of the
property. We review decisions on motions for summary disposition de novo. Spiek v Transportation
Dep’t, 456 Mich 331, 337; 572 NW2d 201 (1998). When considering a motion brought under MCR
2.116(C)(10), “[t]he court considers the affidavits, pleadings, depositions, and other documentary
evidence submitted or filed in the action to determine whether a genuine issue of any material fact exists
to warrant a trial.” Id.
Defendant’s contention that the statute of limitations on an action for the recovery of land, MCL
600.5801; MSA 27A.5801, had run, is merely another way of claiming that plaintiffs’ ownership
interest in the cottage had been extinguished by his adverse possession. Establishing adverse
possession of real estate requires “clear and cogent evidence that the possession has been actual,
visible, open, notorious, exclusive, continuous and uninterrupted for the statutory period of fifteen years,
hostile and under a claim of right.” Walters v Snyder, 225 Mich App 219, 223-224; 570 NW2d 301
(1997). An adverse claimant may “tack” to his own period of possession those periods of possession
by his predecessors in interest provided he can show privity of estate with those predecessors such as
by mention of, or reference to, the disputed property at the time of conveyance. Connelly v
Buckingham, 136 Mich App 462, 474; 357 NW2d 70 (1984).
Because the probate court construed Robert B
lue’s quitclaim conveyance as only passing a
one-half interest along defendant’s chain of title, held as a tenancy in common with the one-half interest
held by plaintiffs, subsequent periods of possession must be examined for the elements of adversity in
light of the rights and duties of cotenants. Cotenants in real property are each entitled to possess and
enjoy the whole of the property. Quinlan Investment Co v The Meehan Cos, Inc, 171 Mich App
635, 639; 430 NW2d 805 (1988). “[A]cts of possession by a cotenant will be presumed to be done
consistently with the title of the other cotenant[s] rather than adversely.” Mackinac Island Dev Co v
Burton Abstract & Title Co, 132 Mich App 504, 513; 349 NW2d 191 (1984).
Admittedly, plaintiffs used the cottage every year from 1980 to 1996, although defendant
contends that this was only by his permission. It is clear that the probate court did not err in denying
defendant’s motion for summary disposition based on adverse possession because defendant “simply
failed to make out a prima facie case of clear title.” Ingle v Musgrave, 159 Mich App 356, 362; 406
NW2d 492 (1987). Common courtesy among cotenants (i.e. the asking and granting of permission to
use the cottage) and plaintiffs’ failure to contribute money for expenses do not represent clear and
cogent evidence of hostility. Thus, because no genuine issue of material fact existed with respect to
defendant's failure to demonstrate the elements of adverse possession, the trial court properly concluded
that defendant was not entitled to summary disposition on the basis of adverse possession.
Defendant also contends that the probate court should have granted his motion for summary
disposition on a laches theory because he expended a great deal of time and money preserving the
property. “Laches is an equitable defense to a claim that may be invoked when the delay in bringing a
claim prejudices the other party.” Great Lakes Gas Transmission Co v MacDonald, 193 Mich App
571, 577; 485 NW2d 129 (1992). In this case, laches is inapplicable for two reasons. First, the failure
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of plaintiffs to bring a quiet title action sooner cannot appropriately be termed a delay because, until the
estates of Robert and Beulah Blue went into probate, the property was apparently being possessed,
used, and enjoyed consistently with the rights of all the cotenants, and plaintiffs had no reason to bring
an action. Second, defendant cannot show prejudice. Defendant asserts that he was prejudiced
because he spent a great deal of time and money preserving the property. However, a cotenant may, as
the court pointed out, seek an equitable partition of the property, during which the court may take into
consideration “the value of the use of the premises by a party or the benefits which a party has
conferred upon the premises.” MCL 600.3336; MSA 27A.3336. Thus, we conclude that the probate
court properly denied defendant's motion for summary disposition on the basis of a laches theory.
Next, defendant argues that, absent the application of the statute of limitations or laches, there
were many unresolved issues of material fact concerning construction of the trust instrument, which
should have precluded the granting of plaintiffs’ motion for summary disposition pursuant to MCR
2.116(C)(10). Generally, where the terms of a contract, or in this case the terms of a trust within a
contract, are “subject to two reasonable interpretations, factual development is necessary to determine
the intent of the parties and summary disposition is therefore inappropriate.” Meagher v Wayne State
University, 222 Mich App 700, 721-722; 565 NW2d 401 (1997). However, where the language is
clear and unambiguous, construction of the terms is a question of law for the court. Id. See also In re
Maloney Trust, 423 Mich 632, 639; 377 NW2d 791 (1985)(Cavanagh, J).
We agree that the terms of the trust were subject to more than one reasonable interpretation
and, therefore, ordinarily, summary disposition would not be appropriate. Meagher, supra at 721
722. However, the probate court had access to all of the evidence there was, and reasonably ever was
going to be, regarding the terms of the trust. Essentially, when the court construed the trust, it tried the
issue. The proceeding differed from an actual trial only in name, formality, and notice to the parties.
While the combination of summary disposition and trial procedures when addressing a summary
disposition motion is error, the error can be harmless. Whitcraft v Wolfe, 148 Mich App 40, 49; 384
NW2d 400 (1985); Sanchez v Lagoudakis (On Remand), 217 Mich App 535, 554-555; 552 NW2d
472 (1996) rev’d on other grounds 458 Mich 704 (1998).
The probate court interpreted the relevant portion of the property settlement agreement as
placing in trust a one-half undivided interest in the cottage. Essentially, the court held that Robert Blue’s
obligation to continue making payments on the land contract did not diminish the percentage of
ownership held in trust for plaintiffs. The probate court’s interpretation was reasonable. If this had
been a proper bench trial, 2 it could not be said that the court’s findings were clearly erroneous. Thus,
we conclude that the probate court did not err in resolving the interpretation of the trust instrument in the
context of plaintiffs’ motion for summary disposition.
However, our examination of the January 22, 1997, order quieting title reveals that, in part, the
law was incorrectly applied to the court’s reasonable construction of the trust instrument. Since the
presumption of tenancy in common does not apply to grants in trust, MCL 554.45; MSA 26.45, and
both plaintiffs took identical interests by the same instrument at the same time with the same rights of
possession, it then follows that plaintiffs held equitable title to a one-half undivided interest in the cottage
as joint tenants. In re Ledwidge Estate, 136 Mich App 603, 605; 358 NW2d 18 (1984). To the
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extent that the written order described plaintiffs’ interest as “joint tenants with full rights of survivorship,”
the order erroneously converted a joint tenancy (which by definition has survivorship rights) into joint life
estates with dual indestructible contingent remainders. Albro v Allen, 434 Mich 271, 275-276; 454
NW2d 85 (1990); Snover v Snover, 199 Mich App 627, 629-630; 502 NW2d 370 (1993).
Moreover, the court did not find on the record that Robert and Beulah’s quitclaim conveyances
were “null and void” as expressed in the written order, and such a finding would be irreconcilable with
the finding that defendant and Bryan Blue held a one-half interest in the property. On the record, the
court correctly concluded that the conveyance from Robert Blue to himself and Beulah Blue only
“succeeded as to the one half of the undivided interest that he retained in ownership.” Since it is
presumed that such a conveyance creates a tenancy by the entirety, which carries with it a right of
survivorship, it follows that upon Robert’s death, the one-half undivided interest passed in fee to Beulah
Blue without becoming part of Robert’s estate. Beulah Blue’s subsequent quitclaim conveyance then
effectively passed this same interest to “Beulah A. Blue, Bryan V. Blue, and David C. Blue as joint
tenants with right of survivorship.” As mentioned above, this language does not create an ordinary joint
tenancy, but rather creates joint life estates with indestructible contingent remainders. Albro, supra at
275-276; Snover, supra at 629-630. A quiet title action which construes this language differently
“however reasonable under certain family circumstances” requires reversal because it would “create
chaos among property rights.” Snover, supra at 630. Thus, the probate court’s order quieting title is
erroneous to the extent that it states that the one-half interest is owned by defendant and Bryan as
tenants in common.
In sum, with respect to the court’s grant of partial summary disposition, we hold: (1) the
combination of trial procedures and summary disposition was harmless error under the circumstances of
this case; (2) plaintiff s hold their interest as “joint tenants” and not as “joint tenants with full rights of
survivorship”; (3) Bryan Blue and defendant hold their interest as “joint tenants with full rights of
survivorship” and not as tenants in common; and (4) the quitclaim deed executed by Robert Blue and
Beulah Blue are not “null and void,” but are deemed to have not transferred the one-half interest placed
in trust for plaintiffs.
Defendant next argues that even if it was proper to award plaintiffs a one-half interest in the
cottage property, the probate court erred in failing to recognize plaintiffs’ interest as still impressed with
a trust, and that the court erred in denying his motion for relief from the order quieting title on this
ground. This issue presents a mixed question of law and fact. We review the probate court’s implicit
finding that the written order comported with its ruling for clear error. MCR 2.613(C). Whether the
court properly concluded on the basis of its finding that plaintiffs should take their one-half interest free
from trust presents a question of law. We review questions of law de novo. Yaldo v North Pointe Ins
Co, 217 Mich App 617, 623; 552 NW2d 657 (1996) aff’d 457 Mich 341 (1998).
Although the probate court did not elaborate regarding the specific trust purposes and the terms
of the trust instrument, there are only a limited number of possibilities, each of which would properly
result in plaintiffs taking their interest in the cottage free of trust. The trust instrument itself offers limited
assistance in determining the settlor’s trust purpose. It simply states that “[Robert Blue] agrees to hold
such interest of [Winifred Blue] in trust for the minor children of [Robert and Winifred Blue].” With
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regard to the trust purpose, there are four reasonable alternatives: (1) there was never a legitimate trust
purpose in that the trustee had no duties to perform; (2) the trustee was to hold legal title until the
beneficiaries (plaintiffs) were no longer minors; (3) the trustee was to hold legal title only so long as he
lived; or (4) the trustee was to hold legal title until some other, now unascertainable but legitimate, trust
purpose had been achieved.
If a potential trustee is not given any duties to perform in a trust intended to transfer possession
of real property to the beneficiaries, it fails as a trust from the beginning and the beneficiaries are
considered to be vested with the entire legal estate. MCL 555.3-.5; MSA 26.53-.55. If the purpose
of the trust was for the trustee to hold legal title only during the period of plaintiffs’ minority, then when
the youngest plaintiff reached adulthood, the purpose for which this express trust was created ceased to
exist, and the estate of the trustee also ceased to exist. MCL 555.23; MSA 26.73. Plaintiffs, as
beneficiaries, would come into legal title with no necessity of reconveyance. Detroit Trust Co v
Stoepel, 312 Mich 172, 185-186; 20 NW2d 148 (1945). Likewise, if the purpose of the trust was for
the trustee to hold legal title only during his lifetime, then upon the death of Robert Blue, plaintiff s’
interest in the estate would have automatically vested in them. Finally, if the purpose of the trust was for
some other legitimate, but now unascertainable purpose, then when the trustee died, the trust interest did
not pass to his heirs or estate, but rather, vested in the court to “be executed by some person appointed
for that purpose, under the direction of the court.” MCL 555.24; MSA 26.74. Under any of these
scenarios, it would have been proper for the court to enter an order quieting title, in which plaintiff s’
one-half interest was recognized to be free from trust.
Finally, defendant contends that the probate court erred in concluding that it did not have
subject matter jurisdiction over defendant's counterclaim seeking an equitable lien against the property
and/or contribution for amounts spent to maintain the Harsen’s Island property. We agree. We review
de novo a court’s grant or denial of summary disposition under MCR 2.116(C)(4) for lack of subject
matter jurisdiction. Manning v Amerman, 229 Mich App 608, 610; 582 NW2d 539 (1998).
The probate court “has exclusive legal and equitable jurisdiction [to] . . . [d]etermine any
question arising in the . . . distribution of any trust, including questions of construction of . . . trusts . . . .”
MCL 700.21; MSA 27.5021. Here, the partition and contribution claims clearly arose out of the
distribution of the trust by the probate court. Consequently, the probate court erred in granting
plaintiffs’ motion for summary disposition pursuant to MCR 2.116(C)(4). See Manning, supra.
Accordingly, we affirm the probate court’s grant of partial summary disposition in favor of
plaintiffs pursuant to MCR 2.116(C)(10), but remand this case to the probate court for correction of
the order quieting title consistent with this opinion. We reverse the probate court’s order granting
plaintiffs’ motion for summary disposition pursuant to MCR 2.116(C)(4) and remand for
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further proceedings regarding defendant’s counterclaim. We do not retain jurisdiction.
/s/ Martin M. Doctoroff
/s/ Stephen J. Markman
/s/ Joseph B. Sullivan
1
Plaintiffs had, for a time, been substituted as co-personal representatives for the Estate of Robert Blue.
2
An action to quiet title is equitable in nature and, therefore, is tried without a jury. In re Forfeiture of
$1,159,420, 194 Mich App 134, 154-155; 486 NW2d 326 (1992); Michigan National Bank &
Trust Co v Morren, 194 Mich App 407, 410; 487 NW2d 784 (1992).
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