An agreement to convey, though invalid to affect the title to real estate, in whole or in part, may yet be valid between the parties as a basis for the recovery of damages by reason of its breach. In Miller v. Smith, 140 Mich. 524 (103 N. W. 872), where defendants, having only a partial interest as heirs in certain real estate, contracted to sell the same and give perfect title, this court said:

"The fact that specific performance could not be enforced would not bar plaintiff from his right of action at law to recover damages for such failure."

This rule is too well settled to call for further discussion or citation of authorities. The fact that the relation of husband and wife is involved, and she has an interest in the property, does not necessarily militate against that rule. In the case of Dikeman v. Arnold, supra, defendant made a contract, not signed by the wife, for the sale of certain land, a part of which was their homestead. The wife would have a dower interest in all. The contract was held void as to the homestead and valid as to the rest in an action for nonperformance; this court saying:

"We think the contract was good between Arnold and the plaintiffs. He knew when he made it that he could not perform it without the signature of his wife to the deed. He, in effect, bound himself to procure such signature. It in no wise differs in this respect from a contract to sell lands which one does not own at the time he makes such contract. The fact that one did not have the legal title at the time he made the contract, and could not procure it afterwards, has never been recognized as a legal defense to an action for breach of the contract."

The instrument under consideration was not, properly speaking, an attempt to convey the title to the property described in it, but an agreement that the vendor would convey a good title at a stated future time, should the vendee perform on his part. When the time to convey arrived, it was not a case of inability on the part of Root to perform by reason of the subsequent discovery of a previ

ous hidden and unsuspected defect in his title. The title was clear and without complications in himself and wife. There was nothing secret or hidden from him as to its condition. He knew, or is presumed to have known, how it was held. But, if he did not in fact clearly understand the nature of his wife's interests and rights, he at least knew he was a married man, and that to convey a complete title to this real estate his wife must join him. He testifies:

"I knew that when I came to make a deed my wife would have to sign it to make a good title."

With knowledge that his power of performance was contingent on her assent and co-operation, he contracted to convey this land, of which he was in possession and control, which involved no homestead rights, in which he had an interest and of which he claimed ownership, but which by reason of his wife's interest and the condition of its title he was powerless to convey, and therefore the vendee powerless to enforce specific performance.

Titles by entireties, as known under the common law, are virtually abolished in this State and survive only as to husband and wife, who at common law were one person, and as to whom it was, and is, held that when title to real estate passed to them together, during coverture, they as one person took but one estate seised by them singly per tout, and not per my et per tout as in case of joint tenancy. It is in most essentials like a joint tenancy, the owners holding the estate together and the survivor taking the whole, but modified by the common-law doctrine that the married pair is one person, and that neither half of that person in law can transfer or affect the title alone, but both halves must act together as a whole, while joint tenants may alien their interests individually at pleasure. This anomalous and sui generis species of tenancy remains, and is the well-settled law of this State under a clear line of decisions, and cannot be questioned. When the husband and wife have thus together acquired an unincum

bered title to real estate they have laid up treasures, where, without their concerted action, neither moth, nor rust, nor thieves, nor creditors, nor anything else but death or the tax gatherer can divest them. But beyond that we see no reason and know no authority for extending personal protection to the husband when he assumes to deal singly with property so held, and makes contracts in relation to it which he cannot perform. We think that the husband's contract to sell realty held by himself and wife under a tenancy by entirety, though not susceptible of specific performance, nor valid to affect in any way either her or his title, has validity between him and the party to whom he contracts to sell as foundation for an action to recover damages for his breach of it.

As to the measure of damages, the trial court charged the jury that, in case it was found the defendant had not acted in good faith, it would be a fair market value of the land in the open market, as it then lay, taking into consideration the soil, the improvements, and uses for the purposes it was reasonably susceptible of under conditions as they then existed; but, if he acted in good faith, the measure would be the payments plaintiff had made, with interest, evidently being guided in giving such instructions by the rule stated in Hammond v. Hannin, 21 Mich. 374 (4 Am. Rep. 490). Defendant excepts to this, and urges the equity rule stated in Warvelle on Vendors (2d Ed.) p. 229, that, in case of rescission, where the vendee has paid and been put into possession

"The decree should in general restore the money to the purchaser without interest and the land to the vendor without rents and profits."

This is not a case of rescission by the vendee and a suit to recover the purchase money paid. Therefore the latter rule is not controlling. In commenting on Hammond v. Hannin, supra, counsel for defendant say it has not since been recognized by this court and the doctrine of good or

bad faith has been repudiated by the Federal courts and a large majority of the State courts of last resort:

"That the good or bad faith of a vendor should not enter into the matter at all. The vendee should not have his damages measured by any such standard."

Assuming, without admitting, that this view is correct, the defendant was not prejudiced by the instructions upon that point. The court submitted the question of good or bad faith to the jury with the instruction that, if the vendor did not act in good faith, the measure of damages would be the market value at the time of the breach, which is the general rule, with those elements eliminated, where the vendee is entitled to his bargain, and seeks to recover damages for wrongfully being deprived of it. That general rule has been recognized by this court, where the question of good or bad faith was apparently not involved (Dikeman v. Arnold, supra), and in Allen v. Atkinson, 21 Mich. 351, found in the same volume as the Hammond Case, Justice COOLEY, who wrote both opinions, sustains that rule. We find no prejudicial error in the charge of the court in that particular.

The court did, however, contrary to the request of defendant's counsel, distinctly instruct the jury that no offset could be allowed for rental or use of the premises by George Way during the time that he was in possession, for the reason that title to the property was in Root and his wife, and recovery for its use could only be had in a concerted action brought by them in their joint names. In this we think the court was in error. Dealing with the use and usufruct of the property is not the same as dealing with its title.

The rights of husband and wife in such an estate are purely common-law rights, to be tested and interpreted by the rules of that law as they existed before the wife was emancipated as to her individual property interests. By the common law the husband controlled his wife's estate, and had the usufruct, not only of real estate standing in

both their names, but of that sole seised by his wife, whether in fee simple, fee tail or for life. It remains the law that, while coverture continues, the husband has the control, use, rents, and profits of an estate by entirety. In this State, contrary to the general doctrine, as stated by some authorities (21 Cyc. p. 1201), it is held that growing crops on the land cannot be seized on execution by his personal creditors, but otherwise the general rule as to entireties remains as stated. Morrill v. Morrill, 138 Mich. 112 (101 N. W. 209, 110 Am. St. Rep. 306, 4 Am. & Eng. Ann. Cas. 1100). Under this law defendant had the possession, use, and control of the property. He was entitled to the income from it. While outside creditors might not reach it, he was empowered to take, deal with, and dispose of what it produced. He had a right to rent the property to others and collect the rent. He rented it to George Way, and put him in possession. His possession during the time in question was that of a tenant at will, or from month to month, defendant having no right to sell him the property and the contract of sale which he gave being silent as to possession. But he could lawfully collect rent from Way, and evict him in case of default, and Way could enforce a lease of the property given him by defendant alone. Pray v. Stebbins, 141 Mass. 219 (4 N. E. 824, 55 Am. Rep. 462). We are well satisfied that defendant, being entitled to the rent, could maintain an action in his own name to collect it, and we think he is entitled to recover it as a counterclaim when sued by the party owing it, or his assign.

Both George Way and defendant testified as to the rental value of the premises, but that issue was not submitted to the jury, and consequently the same was not allowed. George testified that up to the time of making the contract he was paying $4 per month. Defendant, who was manifestly interested in depreciating the value of the property for purpose of the trial, testified that he had rented the house and garden for 50c a week at one time, that George Way paid $1.75 per month, that the rental