JOAN B. JACKSON, Plaintiff-Appellee,
v No. 136423 ESTATE OF RONALD GREEN, Defendant-Appellant.

BEFORE THE ENTIRE BENCH CORRIGAN, J. We granted leave to appeal to consid er whether an action to partition real estate may go forward when the joint tenant who filed the action died before an order of par tition entered. 1 We would hold that title ve sted in the su rviving joint tenant on the decedent’s death because the mere filing of a partition action does not sever a joint tenancy and no order granting partitio n was entered before the death. We would thus affirm the trial court’s denial of defendant’s motion for

1 We also granted leave to appeal to consider whether the statute of limitations bars plaintiff’s claim for breach of contract. That issue is addressed in separate opinions by Justices Ca vanagh, Young, and Markman. Michigan Supreme Court Lansing, Michigan 

# Opinion Chief Justice: Marilyn Kelly Justices: Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway

FILED JULY 30, 20092 summary disposition and the judgment of the Court of Appeals on the partition issue.
I. FACTS AND PROCEEDINGS At issue in this case are two parcels of real estate held by plaintiff and defendant as joint tenants and a series of oral loans from plai ntiff to defendant. 2 In May 1991, defendant negotiated the purchas e of a parcel of land on behalf of plaintiff, and the deed convey ed the land to both parties as joint tenants. In September 1991, plaintiff purchased a se cond parcel of property, which was conveyed to plaintiff and defendant as joint tenants with full rights of survivorship. In 2004, plaintiff filed a breach of c ontract action, alleging that defendant had failed to repay the loans. Plaintiff al so sought to force defendant to relinquish his right to the two parcels of land. The trial court granted summary disposition for defendant regarding the deeds for the properties, ho lding that the deeds were properly executed and gave defendant vali d property interest s. Regarding the loans, the court did not acce pt defendant’s argument that the statute of limitations barred plaintiff’s claim. A jury found that each check plaintiff issued to defendant was a loan, and the court entered judgment on the verdict in plaintiff’s favor.

2 The defendant’s estate was substitu ted as a party when the original defendant died, but for ease of referenc e we will refer to both the original defendant and his estate as “defendant.”3 Defendant then filed a separate acti on for partition of the parcels. At plaintiff’s request, the partition action was st ayed pending the appeal in this case. Defendant unexpectedly died while the appeal was pending in the Court of Appeals. His estate was substituted as th e plaintiff in the partition action and as the defendant in this case. The Court of Appeals affirmed the trial court’s ruling that defendant possessed a valid property in terest in the two parcels, but held that because no order severing the joint tenancy had issued in the partition acti on before defendant died, defendant’s interests in the parcels reverted to plaintiff upon defendant’s death. The Court of Appeals further held that the statute of limitations did not bar plaintiff’s breach of contract action for repayment of the loans because the claim did not accrue until plaintiff demanded re payment by filing her complaint in
2004. 3 We granted defendant’s appli cation for leave to appeal. 4

II. STANDARD OF REVIEW Whether a partition action ma y go forward if a joint tenant dies before the joint tenancy is severed is a question of law that we review de novo. Cardinal

3 Jackson v Green Estate , unpublished opinion per cu riam of the Court of Appeals, issued April 1, 2008 (Docket No. 269244).

4 482 Mich 981 (2008).4 Mooney High School v Michigan High School Athletic Ass’n , 437 Mich 75, 80; 467 NW2d 21 (1991).
III. PARTITION We agree with the Court of Appeals that defendant’s interest in the parcel of land 5 automatically reverted to plaint iff when defendant died. Thus, defendant’s estate has no interest in the property, and even if defendant’s partition action survived his death under Michigan ’s survival statute, MCL 600.2921, nothing remains to partition. “The principal characteristic of the joint tenancy is the right of survivorship. Upon the death of one joint tenant, the surviving tenant or tenants take the whole estate.” Albro v Allen , 434 Mich 271, 274-275; 454 NW2d 85 (1990). An ordinary joint tenancy 6 may be severed, and the right of survivorship thereby destroyed, by an act of the parties, conveyance by either party, or levy and sale on an execution against one of the parties. Id . at 275.

5 Only the parcel conveyed in the Ma y 1991 deed is curre ntly at issue. Defendant does not dispute pl aintiff’s right of surviv orship in the property conveyed in the Se ptember 1991 deed.

6 In addition to an ordinary joint tena ncy, Michigan reco gnizes a distinct category of joint tenancy known as a “joint tenancy with full rights of survivorship,” which consists of a joint lif e estate with dual contingent remainders. Albro , supra at 275; see also 1 Cameron, Mich igan Real Property Law (3d ed), § 9.11, p 322. “While the su rvivorship feature of the ordinary joint tenancy may be defeated by the act of a cotenant, the dua l contingent remainders of the ‘joint tenancy with full rights of surviv orship’ are indestructible.” Albro , supra at 275- 276. The parcel at issue here, the one conveyed in the May 1991 deed, was held under an ordinary joint tenancy.5 A party can sever a joint tenancy by compelling a partition. Smith v Smith , 290 Mich 143, 155; 287 NW 411 (1939), quoting Midgley v Walker , 101 Mich 583, 584; 60 NW 296 (1894). Until an order of partition has been entered, however, a partition has not been compelle d and, thus, the jo int tenancy has not been severed. See anno: What acts by one or more of joint tenants will sever or terminate the tenancy , 64 ALR2d 918, 956 (explaining th at “[i]t is not the filing of the partition action which terminates the joint tenancy, but only the judgment in such action which has that effect”) (quotation marks and citation omitted). Indeed, the universal rule in the Un ited States is that a pending suit for partition does not survive the death of one of the joint tenants. See Heintz v Hudkins , 824 SW2d 139, 142-143 (Mo App, 1992), and cases cited therein. “This rule is based on two related concepts: Firs t, the theory of surv ivorship—that at the moment of death, ownership vests exclus ively in the survivin g joint tenant or tenants—and second, the doctrine that se verance of the joint tenancy does not occur until the partition suit r eaches final judgment.” Id. , citing Cobb v Gilmer , US App DC 398, 400; 365 F2d 931 (1966). Accordingly, we would hold that th e filing of the partition action did not sever the joint tenancy because an order effectuating a partition had not entered at the time of defendant’s death. Therefor e, regardless whether defendant’s partition action survived his death under the survival statute, his interest in the parcel of land did not.6 IV. CONCLUSION We would hold that defenda nt’s filing of the par tition action did not sever the joint tenancy because no order granting partition wa s entered before defendant’s death. Thus, title vested in plaintiff when defenda nt died, and nothing remains to partition. The Court of Appeal s correctly analyzed the partition issue, and we would therefore affirm it s judgment on that issue.

Maura D. Corrigan Robert P. Young, Jr. Stephen J. MarkmanS T A T E O F M I C H I G A N
SUPREME COURT

JOAN B. JACKSON, Plaintiff-Appellee,
v No. 136423 ESTATE OF RONALD GREEN, Defendant-Appellant.

YOUNG, J. I agree with the analysis set forth in Justice Corrigan’s opinion, which affirms the Court of Appeals on the partiti on issue. I would fu rther hold that the statute of limitations does not bar plaintiff’s claim for breach of contract on the series of oral agreements for loans. Because the loans were made with no fixed time of repayment, they were payable on demand. The period of limitations would not begin to run on such a claim until either a demand was made, expressly or by filing a complaint, or a reasona ble amount of time had elapsed without a demand. In this case, no demand was made until the action was filed. The issue of when a period of limita tions begins to run on an oral agreement for a loan that has no fixed date of payment is a question of law that we review de novo. Collins v Comerica Bank , 468 Mich 628, 631; 664 NW2d 713 (2003).2 The applicable limitations period for plai ntiff’s breach of contract claim is six years. MCL 600.5807(8 ). The central issue here is when the limitations period began to run. “Except as othe rwise expressly provided, the period of limitations runs from the time the claim ac crues.” MCL 600.5827. Moreover, a claim generally accrues when the wrong is done. Boyle v Gen Motors Corp , 468 Mich 226, 231; 661 NW2d 557 (2003). The general rule governing the commencement of the running of the statute of limitations is that the statutory period is computed from the time when the right of ac tion that the plaintiff seeks to enforce first accrued; ordinarily, in an action based on a contract, accrual occurs as soon as th ere is a breach of contract , with some courts qualifying this by stating that accrual occurs when the promisee discovers or should have discovered the breach, and others stating that accrual occurs upon breach, whether or not the promisee is then aware of the breach. [ 31 Williston, Contracts (4th ed), § 79:14, pp 303-307 (emphasis added).] In determining when the period of limitati ons begins to run on a loan that has no repayment term, we must therefore nece ssarily determine when a breach of

contract occurs. The oral loan agreements in this cas e did not set a time for repayment. There is no controlling caselaw that establis hes when a borrower is in breach of an oral loan agreement that is silent conc erning when repayment must occur. Thus, this Court should articulate a rule of law to determine when a breach occurs under the circumstances in this case. We do have some establis hed bedrock principles to guide us in formulating such a rule. A loan made with no fixe d time of repayment is payable on demand.3 Colburn v First Baptist C hurch & Society of Monroe , 60 Mich 198, 200; 26 NW 878 (1886). As a general matter, because no terms of repayment were specified in the contracts, the oral loan agreemen ts could not have been breached until payment was demanded and the demand was rebuffed. Nevertheless, the absence of a specific time for repayment does not allow a creditor to withhold th is demand for an indefinite peri od of time. In the absence of an agreement to the contra ry, we presume that the pa rties intended plaintiff’s demand for repayment to occur within a reasonable amount of time. See Duke v Miller , 355 Mich 540, 542- 543; 94 NW2d 819 (1959) (“[W ]hen a contract is silent as to time of performance or payment, abse nt any expression of a contrary intent, the law will presume a reasonable time.”); Pierson v Davidson , 252 Mich 319, 324; 233 NW 329 (1930) (“It is a genera l rule of law that where no time is stipulated, a reasonable time will be pr esumed. Reasonable time depends upon the facts and circumstances of each case.”). 1 Determining what constitutes a reasonable amount of time to request repaym ent of a loan is necessarily a factual question properly decided by the jury.

1 Although Justice Cavanagh criticizes my citation of Pierson , this proposition is a well-established tenet of Michigan’s contra ct law. Indeed, Smith v Smith Estate , 91 Mich 7; 51 NW 694 (1892), wh ich Justice Cavanagh applies to the instant case, establishe d the very principle he cr iticizes in this opinion. Smith explained that a demand for payment “s hould, upon principle and the best authority, have been made with in a reasonable time . . . .” Id. at 11.4 Ultimately, a breach is the sine qua non of any contract dispute regarding repayment. Justices Mark man and Cavanagh provide alte rnative theories of when a breach occurs if the parties failed to su pply a repayment term. Justice Markman determines that a breach occurs immediately on payment of the loan principal

. Justice Cavanagh determines that a breach occurs exactly six years after payment of the loan principal . Neither theory comports w ith the practice of parties, especially in a case like this , which involved a series of loans made over a period of eight years. Justice Markman would extend the rule articulated in Palmer v Palmer , 36 Mich 487 (1877). In Palmer , this Court held that “a note payable on demand is payable at once and without demand, so th at the statute runs from its delivery.” Id . at 491. The central rationale of the Palmer rule was to prev ent a creditor from keeping a debt alive by d eclining to make a demand until evidence grew stale, thereby defeating the statut e of limitations. “If a creditor has the means at all times of making his cause of action perfe ct, it would be unjust and oppressive to hold that he could postpone indefinitely the time for enforcing his claim by failing to present it.” Id . at 494. 2

2 See also Citizens’ Savings Bank v Vaughan , 115 Mich 156, 159; 73 NW 143 (1897) (“[T]he universal ru le is that [a demand] note is due at once, and that no demand is necessary before bringing suit.”); Taylor v Rugenstein , 245 Mich 152, 154; 222 NW 107 (1928) (“The genera l rule is that suit may be brought on a demand note immediately after delivery, a nd therefore the statute of limitations begins to run from the day of delivery.”).5 Palmer and its progeny thus recognized an implied demand for repayment of written demand notes. This Court has not applied the Palmer holding to oral loan agreements. I can discern no reason to extend what is essentially a legal fiction—that a breach occurs immediately upon the making of a loan even though no actual demand was made—to oral loan agreements. I believe that the principle of law articulated in Palmer , which presumes a demand for repayment—and therefore a breach—immediately upon payment of the loan principal, is illogical and entirel y inconsistent with contracting parties’ intent. I suspect that no one making or receiving a loan believes that the recipient is automatically in breach of the loan as soon as the principal is paid. However, this is the “logic” of the Palmer rule. For this reason, I would not extend Palmer beyond its facts. Justice Cavanagh would extend the mechanical rule established in Smith v Smith Estate , 91 Mich 7; 51 NW 694 (1892) , to bar recovery on any loan made more than 12 years before the pl aintiff filed her complaint. Smith concluded that, when no express demand for payment has been made, “a demand should be presumed at the expiration of the time wh en an ordinary money claim would be barred by the statute [of limitations],” id . at 11, that is, six years. A breach would then automatically o ccur after six years, and the creditor would then have an additional six years to bring a cause of action for payment. In this respect, Smith suffers from the same wooden approach as Palmer in determining when a breach of a contract occurs if th e parties have not supplied a term for repayment. Why,6 given all the variables in a contractual relationship, is six years ineluctably a “reasonable” time in which to make a de mand? In this very case, the lender continued to make a series of new loans—a fact that would seem to undermine either the Palmer “breach on payment of the loan” or the Smith “six years equals a breach” theory.

Smith is distinguishable from the instan t case because it involved not a monetary loan, but a sale of logs. “[W] e have no doubt that the transaction was a sale . . . .” Id . Although the Smith Court would have applied th is rule to loans, see id . at 12, that discussion was dictum. I w ould not extend this strict rule to the context of a loan, as the rule fails to take into account the particular circumstances of a given loan. Instead, I would leave the question whether a plaintiff waited an unreasonable amount of time before dema nding repayment to the wisdom of a jury. Plaintiff here did not demand repaymen t until filing this action. In the absence of a demand for repayment, defend ant could not have breached the loan agreements until a reasonable time in whic h to have made a demand had elapsed. 3

3 Under the rule established in Brion v Kennedy , 47 Mich 499; 11 NW 288 (1882), if no demand for repayment is made before the filing of the complaint, the filing of the complaint is considered to be the demand. The central inquiry in this type of case is whether the plaintiff’s demand for repayment occurred within a reasonable period following the loan or whether that reasonable period elapsed— and therefore the period of limitations be gan to run—before the express demand for repayment.7 Any breach of contract claim would need to have been filed within six years of that time because the limitati ons period would not have begun to run until that time. I agree with the Court of Appeals that “it was not error for the [circuit] court to determine that the nature of the di sbursements, and consequently whether plaintiff’s claims regarding the alleged lo ans were barred by the applicable statute of limitations, was a question of fact th at was properly decided by a jury.” In conclusion, I would hold that th e statute of limitations did not bar plaintiff’s breach of contract claim beca use plaintiff did not make a demand for repayment until she filed this lawsuit an d no breach of co ntract could have occurred unless and until a demand was made and refused or a reasonable amount of time had elapsed without a demand. I ag ree with the Court of Appeals that the finder of fact properly decided this case.

Robert P. Young, Jr. Maura D. CorriganS T A T E O F M I C H I G A N
SUPREME COURT

JOAN B. JACKSON, Plaintiff-Appellee,
v No. 136423 ESTATE OF RONALD GREEN, Defendant-Appellant.

M ARKMAN , J. I agree with Justice Co rrigan’s opinion, which would affirm the Court of Appeals on the partition issue. I agree that title vested in the su rviving joint tenant on the decedent’s death because the mere filing of a partition action does not sever a joint tenancy when no orde r granting partition was ente red before the death. However, I would reverse the judgment of the Court of Appeals on the statute of limitations issue. I disagree that the stat ute of limitations does not bar recovery on any of the loans. Instead, I would hold that the statute of limitations bars recovery on all but the last loan made because it is the only one to fall within the six-year limitations period. MCL 600.5807(8). Plaintiff filed this action, claiming that she gave defendant’s decedent a series of checks as loans to taling more than $50,000, fo r which the parties did not have written contracts. Rather, defendan t’s decedent allege dly asked to borrow money at various times over a period of years. Defendant moved for summary2 disposition, arguing that the statute of li mitations barred the claim, and the trial court denied the motion. A jury found that a ll the checks were loans, all but one of which had not been repa id. The Court of Appeals upheld the denial of summary disposition on the stat ute of limitations issue, Jackson v Green Estate , unpublished opinion per curiam, issued April 1, 2008 (D ocket No. 269244), 1 and this Court granted leave to a ppeal, 482 Mich 981 (2008). I would hold that the period of limitati ons expired for all but the last loan. The Court of Appeals correctly observed that if no time is set for the repayment of borrowed money, the loan is im pliedly payable on demand. See Colburn v First Baptist Church & Society of Monroe , 60 Mich 198; 26 NW 878 (1886). 2 But

1 Decedent died while the appeal was pending. His estate was substituted as the defendant.

2 Justice Young’s “reasonable time” approach is inconsistent with Colburn , 60 Mich at 200, because Colburn held that a loan made with no fixed time for repayment is payable on demand. That is , such a loan is “impliedly payable on demand,” id. , not after some “reasonable time.” Moreover, his reliance on Pierson v Davidson , 252 Mich 319, 324; 23 3 NW 329 (1930), for the proposition that “where no time is stipulated, a reasonable time will be presumed,” is misplaced because this language was clearly dictum, since Pierson immediately thereafter held, “However, it does not even become ne cessary for us to determine what was the reasonable time, for the parties themse lves stipulated that the title should be cleared by February 1, 1929 . . . .” I believe his reliance on Duke v Miller, 355 Mich 540; 94 NW2d 819 (1959), is also misplaced because, unlike the instant case, Duke did not involve when a period of lim itations begins to run; instead, it only addressed whether a memorandum that does not specify the time for payment is sufficient under the statute of frauds as evidence of an agreement to sell land. Incidentally, I am also perplexed by Ju stice Cavanagh’s position because, although he criticizes Justice Young at length fo r adopting the “reasonable time” approach, post at 12-14, he then app ears to adopt it himself, post at 20.3 when does the period of limitations begin to run on a loan that is payable on demand? Does it begin running when the loan is made, when payment is demanded, or at some other time? Th is Court answered that question in Palmer v Palmer , 36 Mich 487, 491 (1877): It is now well settled that a note payabl e on demand is payable at once and without demand, so that the statute runs from its delivery. And this rule has been applied where from the form of the contract it is manifest that i mmediate payment was not expected. Palmer proceeded to explain the rationale for this rule: For if the debt did not become payable until fi xed by demand, and the demand was optional with th e creditor, no tender could be made which would bind him, and he could keep the debt alive in spite of the debtor, for an inde finite period. If there was any infirmity in the consideration, or any defect in the binding character of the obligation, he might retain it until all testimony was lost, and defeat the defense. This is th e mischief which the statutes of limitation were intended to remedy . . . . * * * We cannot but think this to be sound doctrine; whatever may have been the ancient pr ejudice against statutes of limitation they are now regarded as just and entitled to be fairly construed. If a creditor has the means at all times of maki ng his cause of action perfect, it would be unjust and oppressive to hold that he could postpone indefinitely the time for enforcing his claim by failing to present it. He is really and in fact able at any time to bring an action, when he can by his own act fix the time of payment. It is no stretch of language to hold that a cause of action accrues fo r the purpose of setting the statute in motion as soon as the creditor by his own act, and in spite of the debtor, can make the demand payable. It may be otherwise, possibly, where delay is contemplated by the express terms of the contract, and where a speedy demand would manifestly violate its intent. [3] But where no delay is contemplated the rule is

3 In Smith v Smith Estate , 91 Mich 7, 9; 51 NW 6 94 (1892), the decision on which Justice Cavanagh primar ily relies to conclude that the period of limitations4 did not begin to run until six years af ter the loans were made, delay was contemplated by the express terms of the contract, i.e., “when Armstrong came to him to request a loan of the logs to Eugene , Abram said to him, in substance, that he might have them, as he had more than he needed at that time, but they must be returned to him when he demanded th em”; “it was contemplated between the parties that logs of like ki nd and quality should be retu rned as soon as Eugene’s logs . . . came down the stream and into the St. Clair river.” By contrast, the express terms of the instant contracts no more contemplated delay than did the express terms of the contract in Palmer. Given that Justice Cavanagh concedes that the only “express term” of the instan t contracts is that “defendant asked to borrow money from plaintiff,” post at 15, I am not quite sure why he disagrees with my conclusion that the express term s of the contracts did not contemplate delay any more than the Palmer contract. He appears to suggest that the fact that “there were no ‘express terms’ of the contracts that contemplated immediate payment,” post at 20, is the equivalent of meaning that the express terms contemplated delay. However, the express terms in these contracts simply did not address whether delay was or was not contem plated, because, as Justice Cavanagh earlier explained, the only express term of the contracts was that defendant “borrow[ed]” money from plaintiff. Post at 15. In addition, it is noteworthy that, although Justice Cavanagh criticizes Justice Young for relegating to a jury the determination whether claims are ba rred by the statute of limitations, post at 12- 14, he nevertheless relies on the jury’s a lleged conclusion that the parties did “contemplate delay in repayment,” post at 15 n 11, to conclude that the period of limitations did not begin to run immediately. Would Justice Cavanagh leave the statute of limitations issue up to the jury or not? Cont rary to Justice Cavanagh’s contention, post at 15 n 11, the mere fact that th e jury concluded that “repayment is now owed” does not necessarily mean that the jury eith er concluded that repayment was not owed as soon as the money was borro wed or that the parties did “contemplate delay in repayment.” Further, Smith limited its holding to cases in which “a demand is necessary,” 91 Mich at 12, and, as discussed earlier, a demand was not necessary in this case. Palmer , 36 Mich at 491 (stating that “a note payable on demand is payable at once and without demand ”) (emphasis added). For these reasons, I believe that Palmer , rather than Smith , is controlling in this case. Moreover, extending Smith to the instant circumst ances would anomalously provide those parties who never make a timely demand with a longer period in which to bring an action than those parties who do make a timely demand. Justice Cavanagh claims that we “simply disagree on when accrual should occur.” Post at 17. Although this is correct, the accrua l date makes all the difference. Under Justice Cavanagh’s position, if a demand is made immediately after the loan is5 just and reasonable; and the pr esentment should be reasonably prompt, or the creditor should be subjected to the operation of the statute. [ Id . at 491, 494.] Palmer was followed in later cases. See, e.g., Beardsley v Webber , 104 Mich 88, 89; 62 NW 173 (1895) (“No demand is n ecessary on a demand note . . . .”); Citizens’ Saving s Bank v Vaughan , 115 Mich 156, 159; 73 NW 143 (1897) (“[T]he universal rule is th at [a demand] note is due at once, and that no demand is necessary before bringing suit.”); Peninsular Savings Bank v Hosie , 112 Mich 351, 355; 70 NW 890 (1897) (“‘If the in strument be payable on demand, the statute begins to run immediately.’”) (citation omitted); Taylor v Rugenstein , 245

made, the claim will accrue immediately an d the period of lim itations will expire in 6 years from the date of the loan; however, if no demand is ever made, the claim will not accrue until 6 years have passed, and the period of limitations will not expire until 12 years afte r the loan was made. How can this be characterized as anything but an anomalous result? Justice Cavanagh asserts that he is “perplexed” about why I believe this to be an anomalous result. Post at 17 n 13. I believe this to be so because, under Jus tice Cavanagh’s approach, the plaintiff has complete control over when his action accrues, and thus when the period of limitations begins to run. What concerns me is not the fact alone that the plaintiff would get more time; rather, it is that the plaintiff w ould get to choose exactly how much time he would have to bring an action. If the plaintiff wanted to file his action immediately, he could do so; if, on the other hand, he wa nted to wait 10 or 11 or 12 years, he could do that as we ll. Contrary to Justice Cavanagh’s contention, post at 17 n 13, Colburn provides the plainti ff with such unfettered authority only if one ignores Palmer , which held that because no demand is necessary, the period of limitations begi ns to run immediately. Thus, my “consternation” is not caused by Colburn , but by Justice Cavanagh’s disregard of Palmer

. Post at 18 n 13. Finally, contrary to Justice Cavanagh’s contention, my “insistence . . . that accrual must occur at the loan’s inception” is not “contrary to the general rule,” post at 17; rather, it is, in fact, in accord with the general rule both in Michigan, see Palmer , and in a vast majority of other jurisdictions, see n 5 of this opinion.6 Mich 152, 154; 222 NW 107 (1928) (“The general rule is that suit may be brought on a demand note immediately after deli very, and therefore the statute of limitations begins to run fro m the day of delivery.”). In light of these author ities, the Court of Appeals erred, in my judgment, when it stated that “the statute of limita tions would not begin to run on such a claim until a demand for repayment was made . . . .” Jackson , unpublished opinion at 5. 4 Palmer and its progeny established that the period of limitations begins to run from the day that a dema nd note is delivered, unless a contrary intention is apparent. While those cases addressed written demand notes, there is no apparent reason why Palmer should not equally apply to an oral contract. 5 In

4 Likewise, Justice Young errs by r eaching the same conclusion because Palmer specifically rejected this. In Palmer , this Court explained: The [lower] court found that th e suit was not barred. This conclusion was based on the theory that until demand [was] made no action accrued; and that as the time limited by the statute runs from the time when action accrues, it did not begin to run until thirty days after [the demand was made].” [ Palmer , 36 Mich at 490.] Palmer , however, rejected this analysis, reve rsed the lower court’s judgment, and held that the period of limitations began running immediately upon delivery. In addition, Justice Young’s conclusion that there is no breach, and thus that the action does not accrue until a demand has be en made is inconsistent with the undisputed fact that, once money is borrowed, an actio n seeking repayment can be brought at any time. Because an action cannot be brought un til it has accrued, it necessarily follows that once money is borrowed, the action accrues immediately and, thus, the period of limitations begins to run immediately. For this reason, I disagree with Justice Young that the Palmer rule is “illogical” and “inconsistent with contracting parties’ intent.” Ante at 5.

5 Indeed, the majority of other jurisd ictions have held that the period of limitations begins to run from the date the borrowed money is given to the7 fact, the policies underlying statutes of limitations are imp licated even more strongly in the latter circumstances because it is more difficult to produce evidence to defend against a stale cl aim of an oral agreement. 6

borrower under an unwritten or verbal agreement to repay. See anno: When statute of limitations begins to run agai nst action based on unwritten promise to pay money where there is no cond ition or definite time for repayment , 14 ALR4th 1385, 1388 (“Reasoning that oral loans w ithout any due date or provision for repayment occupy the same legal status as obligations due on demand, the court said that the statute of limitations peri od begins to run against suits based on demand obligations, and consequently against suits based on loans without repayment provisions, from the time the obligations or loan agreements are entered into by th e parties.”), citing Gentry v Gentry , 59 NM 395; 285 P2d 503 (1955). Justice Cavanagh would reach another anomalous result in which, although the period of limitati ons would start running under Palmer immediately with regard to written contracts, the period of limitations would not start running with regard to oral contracts until either a demand was made or six years had elapsed. That is, according to Justice Cavanagh, the period of limitations should be longer for oral contracts than for writte n contracts, despite the fact that it is often considerably more difficult to esta blish the terms of an oral contract, as demonstrated by this very case.

6 Unlike Justice Young, I would not leav e it to a jury to determine when a “reasonable” time to make a demand has elap sed. I cannot think of a procedure more likely to undermine one of the prin cipal purposes of a statute of limitations, namely, to establish at leas t some modicum of certainty with respect to the period within which a lawsuit can be brought in response to a llegedly wrongful conduct. Not only is Justice Young’ s rule inconsistent with Palmer , 36 Mich at 491, and Colburn , 60 Mich at 200, as discussed ea rlier, I do not believe that he has demonstrated why stare decisis should not be followed with regard to these decisions, which have adequately served th is state for well over a century. See Robinson v Detroit , 462 Mich 439, 466; 613 NW2d 307 (2000) (observing that before reversing a preceden t, “the Court must ask [ inter alia ] whether the previous decision has become so embe dded, so accepted, so fundamental, to everyone’s expectations that to change it woul d produce . . . practical real-world dislocations”). In particular, with rega rd to this Court’s development of the common law, at least some compelling argu ment must be offered in support of altering the law, and I have h eard no such argument raised here by either party.8 Thus, I would reverse the Court of A ppeals on this issue and hold that all the alleged loans other than the last one fa ll outside the period of limitations. That is, because plaintiff waite d more than six years to demand payment on all the loans but one, all her claims but one are barred by the statute of limitations.

Stephen J. MarkmanS T A T E O F M I C H I G A N
SUPREME COURT

JOAN B. JACKSON, Plaintiff-Appellee,
v No. 136423 ESTATE OF RONALD GREEN, Defendant-Appellant.

CAVANAGH, J. I disagree with the separate opinions of Justices Corrigan, Young, and Markman. On the partition issue, I would allow the merits of defendant’s partition action to be heard because it comes within th e purview of the survival statute. See MCL 600.2921. Regarding the stat ute of limitations issue, I find Smith v Smith
Estate , 91 Mich 7; 51 NW 694 (1892), to be controlling, and I would apply its rule here to hold that all the claims were timel y made except those that related to the first two loans. Accordingly, I would reverse the judgment of the Court of Appeals on both issues.
I. PARTITION In Michigan, there are two fo rms of joint tenancies. Albro v Allen , 434 Mich 271, 274; 454 NW2d 85 (1990). The first is the standard form in which, upon the death of a joint te nant, the entire estate transf ers to the su rviving joint

tenant or tenants. Id. at 274-275. In the standard joint tenancy, one joint tenant2 can unilaterally destroy the right of survi vorship by severing the joint tenancy. Id. One way to sever the joint te nancy is a par tition action. Smith v Smith , 290 Mich 143, 155; 287 NW 411 (1939), quoting Midgley v Walker , 101 Mich 583, 584; 60 NW 296 (1894). The second form of joint tenancy is one that has “express words of survivorship in th e granting instrument in add ition to those creating a joint tenancy, such as . . . ‘with full rights of survivorship.’” Albro , 434 Mich at 275 (citation omitted). In contrast to the sta ndard joint tenancy, it is well settled in Michigan that the survivorsh ip quality of this type of joint tenancy cannot be unilaterally severed by the act of one cotenant. Id. at 275-276. Thus, the survivorship right of this t ype of joint tenancy is indest ructible and is not affected by a partition action. The deeds in this case created both forms of joint tenancies. The September 1991 deed created the second, indestructible variety; thus, the defendant’s partition action had no effect on the joint tenancy’s survivorship quality, and the land automatical ly transferred to plainti ff upon defendant ’s death. The May 1991 deed, however, created a standard joint tenancy, which therefore could be affected by a partition action. Thus , the issue in this case is what effect defendant’s death had on his pending pa rtition action regarding the property covered by the May 1991 deed. This Court’s pronouncements regarding th e absolute right of a cotenant to partition, coupled with the plain language of Michigan’s survival statute, MCL3 600.2921, demand that defenda nt’s death not abate his partition action. Partition actions are governed by two sections of the Revised Judicature Act: MCL 600.3304 and MCL 600.3308. MCL 600.3 304 states that “[a]ll persons holding lands as joint tenants . . . may have t hose lands partitioned.” In addition, MCL 600.3308 states that “[a]ny person who has an estate in possession in the lands of which partition is sought may maintain a cl aim for partition of those lands . . . .” This Court has made strong statements a bout facially valid partition actions and the right of a joint tenant to compel par tition in a standard joint tenancy: “The right of a cotenant to partition is absolute , not a mere matter of grace, within the discretion of the court, regardless of the motives of the parties entitled to partition.” Henkel v Henkel , 282 Mich 473, 482; 2 76 NW 522 (1937) (quotation marks and citations omitted; emphasis a dded). Moreover, partition is mandatory “unless there is some paramount or cont rolling equity which warrants the court in refusing to act . . . .” Id. When interpreting a statute, the primary goal is to give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc , 456 Mich 511, 515; 573 NW2d 61 1 (1998). When the language of the “statute is clear and unambiguous, judicial construction is precluded.” Id. (quotation marks and citation omitted). Michigan’s survival statute provides: All actions and claims survive death . Actions on claims for injuries which result in death shall not be prosecuted after the death of the injured person except pursua nt to the next section. If an4 action is pending at the time of de ath the claims may be amended to bring it under the next section. A failure to so amend will amount to a waiver of the claim for additio nal damages resulting from death. [MCL 600.2921 (emphasis added).] The plain language of the statute is clear and unambiguous and therefore in need of no interpretation— all actions survive a claimant’s death. Not only is this interpre tation consistent with th e plain language of the statute, it is also consistent with the legi slative history of the statute. This Court examined the lengthy history of the survival statute in Hardy v Maxheimer , 429 Mich 422; 416 NW2d 299 (1 987). “‘Early in its history, Michigan adopted a rather liberal “survival act” to preser ve causes of action which, under common law, were terminated by the death either of the person in jured or the tortfeasor.’” Id. at 436, quoting Hawkins v Regional Med Laboratories, PC , 415 Mich 420, 428-429; 329 NW2d 72 9 (1982). The statute was la ter amended to “expand[] the number of causes of action which survived a claimant’s death,” but “in [the Revised Judicature Act], the Legislature ab andoned its restric tive ‘laundry list’ approach to the survival act” and amended it to its present form. Hardy , 429 Mich at 437. This Court then emphasized that the bill analysis accompanying the act clearly showed the Legislature’s intent. Id. The relevant porti ons quoted were as follows:

“ This section drastically changes the present law . . . . At common law, personal rights of acti on died with the person. This seemed manifestly unfair in cert ain cases, so Survival Acts were written to allow certain actions to survive. There is no good reason for allowing some actions to su rvive, and not others, apart from cultural inertia

. . . .5 * * * “This section is a logical advance in the legislation in this area. That it has not been ma de earlier may be due to the unfortunate approach of the statutes in listing those actions which do survive, and thus overlooking those which the statute failed to cover. This section has the added advantag e of simplicity in application.” [ Id. at 437-438.] While the survival statute is commonly applied to tort actions, the history of and comments on the statute clearly illust rate the Legislature’s intent to make all claims immune from attacks based on a claimant’s death. The statute clearly abrogates the harsh common-law rule that pending actions die with the death of a party. 1 In fact, after reviewing the hist ory of and comments on the statute in Hardy , this Court described the language of the statute as “sweeping and unambiguous” and declared that the statute is “universally applicable to all actions and claims which arise under th e Revised Judicature Act.” Id. at 438. A partition action is one of the actions included in the Revised Judicature Act. Given the survival statute’s unqualified language an d this Court’s prior examination of the statute, I would hold that because defendan t was alive when he filed his action for partition, the action survives and should be heard on its merits. To hold otherwise would frustrate the clear intent of the Le gislature and would be inconsistent with

1 In Michigan, the common law gove rns unless it has b een abrogated by statute. Albro , 434 Mich at 286 n 6, citing Myers v Genesee Co Auditor , 375 Mich 1; 133 NW2d 190 (1965), and Bugbee v Fowle , 277 Mich 485, 492; 269 NW 570 (1936).6 this Court’s prior declarations regarding th e applicability of the survival statute to actions arising under the Revised Judicature Act. 2 Moreover, partition actions are equitabl e in nature. MCL 600.3301. Thus, this Court has broader authority to inje ct fairness and render a fair judgment. Brown v Fletcher’s Estate , 146 Mich 401, 417-4 20; 109 NW 686 (1906) (acknowledging a softening of the common- law rule of abatement for a deceased party’s claim when the claim is based in equity). In th is case, notions of equity strongly support allowing the merits of de fendant’s partition actio n to be heard. After defendant filed an action for partition, his case sat idle fo r more than a year while plaintiff appealed the trial court’s earlier ruling regarding the validity of the deeds. Eventually, the Court of Appeal s summarily and correctly affirmed the validity of the deeds. Nonetheless, th e Court of Appeals, without citing any supporting authority, held that because defendant had died before an order of partition was entered, his claim was moot . Given the validity of the May 1991 deed and defendant’s absolute right to partition, I would allow defendant’s action to continue. But for plai ntiff’s lengthy, unmeritorious, and collateral appeal and defendant’s untimely death, the merits of defendant’s claim w ould certainly have

2 Justice Corrigan’s opinion cites a s ection from the American Law Reports Annotated 2d to support its position that a judgment granting partition must be entered before a joint tenant’s death in order to sever the joint tenancy. Ante at 5. The quotation used by her opinion, ho wever, cites California law and therefore ignores the effect that Michigan’s survival statute has on actions that arise under the Revised Judicature Act, such as the partition action here.7 been heard. To hold otherwise would not only ignore notions of equity and this Court’s pronouncements that the right to partition is absolute, but would also frustrate our Legislature’s intent to ma ke claims that arise under the Revised Judicature Act immune from attacks based on a claimant’s subsequent death. See Hardy , 429 Mich at 436-438. 3
II. STATUTE OF LIMITATIONS “[T]he period of limitations runs fro m the time the claim accrues,” which occurs “at the time the wro ng upon which the claim is based was done . . . .” MCL 600.5827. 4 In contract claims, the time of the wrong is the moment that the contract is breached. AFSCME v Highland Park Bd of Ed , 457 Mich 74, 90; 577 NW2d 79 (1998) (opinion by Cavanagh, J.). This case involves oral loans with no terms expressing a time for repayment. Re payment of this type of loan is due upon a demand. Colburn v First Baptist Ch urch & Society of Monroe , 60 Mich 198, 200; 26 NW 878 (18 86). Hence, a claim for nonpayment of such a loan

3 Justice Corrigan’s opinion ignores bot h the language of and this Court’s pronouncements regarding Mich igan’s survival statute. It merely points to a “universal rule” that was pronounced by a Missouri court to explain why defendant’s interest in the la nd did not survive his death. Ante at 5. I query why her opinion cites a Missouri case for its “uni versal rule,” yet fails to cite a single case from this Court. Certainly, the Miss ouri court was not considering the effect of Michigan’s survival stat ute when analyzing the partition claim before it. It belies logic and the intent of our Legislat ure to interpret the survival statute as allowing a deceased claimant’s claim to survive under Mich igan’s survival statute, yet terminate the action on the basis of the claimant’s death.

4 The period of limitations for a contr act claim is six years from the accrual date. MCL 600.5807(8).8 accrues when a demand for repayment is ma de. However, this Court has held that accrual cannot be left to the whim of th e lender because, if it were, the lender could wait in near perpetuity until dema nding payment, which would contravene the venerable aims of statutes of limitations. Indeed, in Smith Estate , 91 Mich at 11, this Court held that if a demand is n ecessary for accrual of the claim, it should be made within a reasonable time, and if the demand is not made within a reasonable time, then accrual occurs and th e period of limitations begins to run at the end of the period that would have been a reasonable time in which to make the demand.
In Smith Estate , the plaintiff sued to enforce a claim for the value of logs that were loaned to the defe ndant after the defendant failed to either return the logs or pay the plaintiff their value. Id . at 8-11. The Court, after reviewing testimony regarding the terms of the oral contract, he ld that the transaction was a sale and the claim was barred by the statute of limitatio ns because the plaintiff failed to bring suit within six years after a reasonable time to demand payment had passed. Id . at 11-12. 5 The Court held that if a plainti ff failed to make a demand for repayment within a reasonable time, we should pr esume that a demand was made at the

5 The facts of the contractual relationship in Smith Estate are very similar to those in the instant contractual relationshi p. In both cases, the parties orally agreed that one party would loan personal property to th e other party. In both cases, the party loaning the property kept a ledger or list of the separate loans made throughout a period of years. In both cases, neither party expressly contemplated when the loans wo uld be due for repayment.9 expiration of the reasonable time to begin th e running of the period of limitations. The Court defined a reasonable time as e quivalent to the six-year period of limitations for an ordinary money claim, thus giving a party si x years to make a demand and six years to bring suit after having made the demand. Id . The Court adopted this rule from Keithler v Foster , 22 Ohio St 27 (1871). Smith Estate , 91 Mich at 12. 6 Moreover, the Court reasoned that its rule was driven by the purpose of the statute of limitations: “The object of the statute of limitations is a beneficial one; and it is a salutary protection ag ainst fraudulent and stale claims, which without it might purposely be postponed for enforcement until the lapse of time had destroyed the proofs of their falsity.” Id . at 11. In essence, Smith Estate gives a plaintiff 12 years to bring a contract action on an oral loan that sp ecified no time for repayment. The plaintiff has a reasonable time in which to make a demand, which Smith Estate held is six years as a matter of law. If no demand is ma de within six years, then the court will “presume” that a demand was made for th e purposes of the statute of limitations. 7

6 See Keithler , 22 Ohio St at 32 (stating that “where no demand is shown to have been made within the statutory peri od for bringing the action, . . . for the purpose of setting the statut e in operation, a demand will be presumed at the expiration of that period, from which tim e the statute will begin to run”).

7 Intuitively, if an actual demand oc curred before the presumed demand, accrual would occur at the tim e of the actual demand.10 Then, under the statute of limitations, the plaintiff has six years from the date of this presumed demand to bring a claim. 8 In this case, consisten tly with the rule of Smith Estate , I would hold that the July 1991 and September 1992 oral loans between pl aintiff and defendant are barred by the statute of limitations. Because plaintiff failed to make a demand for repayment within a reasonable time, I w ould presume that a demand was made at the expiration of the reasonable time and th us measure the period of limitations from the date of the presumed demand. There were 11 oral loans, which were made between July 1991 and February 1999. Plaintiff made no demand for payment until she filed her complaint coveri ng all these loans in November 2004. Thus, for any loan made more than 12 year s earlier, i.e., before November 1992, plaintiff’s claim would be untimely. 9 Plaintiff’s claims in cluded two such loans,

8 Smith Estate held that [t]his rule gives the party six ye ars in which to make his demand, and six years in which to commence his suit after demand, in all cases where a demand is nece ssary before suit. See Keithler v. Foster , 22 Ohio St . 27 [1871]; Massie v. Byrd , 87 Ala. 672 (6 South. Rep. 145) [1889]; Thrall v. Mead’s Estate , 40 Vt. 540 [1868]; Codman v. Rogers , 10 Pick. 119 [2 7 Mass 112 (1830)]; Mitchell v. McLemore , 9 Tex. 151 [1852]; Eborn v. Zimpelman , 47 [Tex] 503 [1877]; Morrison’s Adm’r v. Mullin , 34 [Pa] 12 [1859]; Ball v. [ Keokuk & N W R ] Co. , 62 Iowa, 751 (16 N. W. Rep. 592) [1883]; Lower v. Miller , 66 [Iowa] 408 (23 N. W. Rep. 897) [1885]; Ang. Lim. § 96; Bus.Lim. § 159. [ Smith Estate , 91 Mich at 11-12.]

9 This is because the latest reasonabl e time for plaintiff to make a demand on an oral loan made in November 19 92 would be six years later—November 1998. And each of the claims on the pr e-November 1992 loans would be time-11 which originated in July 1991 and Sept ember 1992. Thus, her claims on those loans were barred by the statute of limita tions in July 2003 and September 2004. In contrast, the claims relating to the remaining nine loans, which were made between March 1994 and February 1999 , were timely under the November 2004 complaint. 10

barred because plaintiff filed her complain t covering all the loans in November 2004.

10 Justice Young contends that Smith Estate is distinguishable and, as a result, I am incorrectly extending th at case by applying it here. Smith Estate dealt with the claim that the trial court wrongl y precluded a certain witness’s testimony. Smith Estate , 91 Mich at 8-9. That testimony wo uld have been used to support the plaintiff’s claim that the contract was a loan, rather than a sale. Id . at 9. It is true that Smith Estate concluded that the contract at issue was one for a sale, rather than a loan. But the Court went on to clearly explain that, if the testimony had been wrongly rejected, and if the contract was a loan, the erro r would have been harmless because the plaintiff’s clai m would have been untimely under the presumed-demand rule. Id . at 11-13. In fact, the unanimous Smith Estate Court expressly adopted the rule from the Ohio decision Keithler v Foster for the exact issue that is presented in the instant case. Id . at 12. The Keithler court clearly noted that the statute [of limitations] begins to run, in cases like this, from the time of demand, [and] it would be but reasonable to hold, in the absence of other special circumstan ces, where no demand is shown to have been made within the st atutory period for bringing the action, that, for the purpose of se tting the statute in operation, a demand will be presumed at the expiration of that period, from which time the statute w ill begin to run. [ Keithler , 22 Ohio St at 31- 32.] Thus, Smith Estate held that if the testimony had been admitted, and the contract had been seen as an oral loan with no specified time for repayment, this rule would apply. Thus, I find Smith Estate to be directly on poi nt and persuasive. Further, to the extent that this portion of Smith Estate was dictum, I would adopt it as the controlling rule on this issue, which is exactly what our colleagues in Smith Estate unanimously said th at they would do.12 As noted, I agree with Justice Young’ s statement that “the absence of a specific time for repayment does not allo w a creditor to withho ld this demand for an indefinite period of time.” Ante at 3. However, I do not agree with the construct that Justice Young develops to ad dress this concern. He institutes a rule that allows the jury to d ecide when a presumed demand should occur, which is set at what the jury determines to be a re asonable time. Justice Young bases this construct on the idea “that the parties in tended plaintiff’s dema nd for repayment to occur within a reasonable amount of time.” Ante at 3. I decline to accept this construct for several reasons. First, there is little precedential sup port for this construct. Justice Young relies on Pierson v Davidson , 252 Mich 319; 233 NW 32 9 (1930), to support his
construct. But Pierson is both factually and lega lly distinguishable from the present case. Factually, Pierson involved a written oil a nd gas lease agreement. Id . at 320-321. Thus, unlike the present case, Pierson did not deal with an oral loan. And legally, Pierson dealt with the contractual requirement that the lessor clear a cloud on the title to the real prop erty or the lease w ould “‘be voided and extinguished, and shall become null and void . . . .’” Id . at 321. Pierson did not deal with the question of when payment on an oral promise to repay, which hinges on a demand, was due. In contrast, Smith Estate dealt with this Court’s unanimous statement that, in the case of an oral loan with no time se t for repayment, a demand is to be presumed six years from th e loan’s inception and accrual occurs at that time. In light of Jus tice Young’s refusal to rely on Smith Estate (a case that is13 factually and legally exactly on point), I question his reliance on Pierson because that case seems much less applicable here than Smith Estate . It is unclear why Justice Young finds Smith Estate too dissimilar for ap plication here, while concomitantly finding the much more distinguishable Pierson case to be controlling. Second, I believe that Justice Young’ s construct overly diminishes the statute of limitations. Justice Young puts no restriction on ho w long a reasonable amount of time may extend. Instead, he would allow a reasonable amount of time to go on indefinitely. I th ink that this eviscerates the statute of limitations and undermines its purposes in this context, as Smith Estate clearly discussed. See Smith Estate , 91 Mich at 11-12. In contrast to Justice Young’s construct, the Smith Estate construct presents a better balan ce between the rationales supporting the statute of limitations and the legal prece pts pertaining to oral contracts. The Smith Estate construct gives definite answer s. Under no circumstances may a plaintiff carry out his claim mo re than 12 years past the time of the oral loan that has no time set for repayment. As no ted, this Court lauded the stability and predictability of this construct in Smith Estate because it reduces fraud and the litigation of stale issues. See Smith Estate , 91 Mich at 11. Justice Young’s construct does not protect ag ainst these problems. The Smith Estate construct also honors the concepts that an oral loan is not due until a demand is made and a claim does not accrue until a demand (presumed or actual) occurs. In contrast, under Justice Young’s construct, a plaintiff need only convince a jury that it was14 reasonable to delay the demand for paymen t for any number of years in order to bring claims on loans that originated, conceivably, decades in the past. Both Justice Young’s construct and the Smith Estate construct presume a demand at some point after the oral loan was made. I find the Smith Estate construct’s method of determining when that presumption occurs to be more closely tied to the purposes of the limitations period, while honoring basic contract tenets. Further, Smith Estate provides the most applicab le standard for the facts and issues in the present case; therefor e, I would apply it in place of Justice Young’s construct. Under the Smith Estate construct, I would hold that only the claims on the first two loans (those ar ising before 1992) were time-barred. I note that Justice Markman questions my reliance on Smith Estate . He argues that the contract in Smith Estate contemplated a delay in repayment, whereas the “express terms of the instant contracts” did not contemplate any such delay. Ante at 3 n 3. I respectfully disagree. I question whether Justice Markman can opine on the “express terms” of the in stant contract with any specificity, given that the parties litigated the very existence of any oral contract. Indeed, the trial court discussed this case’s facts as fo llows when reviewing a motion for summary disposition: The loans—or the distribution of money . . . is a close question, but there is some testimon y that [Green] made a request to borrow, which I think impliedly in cludes a promise to repay, and while [Jackson] said [in her de position] there was no specific agreement or promise to repay . . . , which certainly hurts her case, she did say that there was a request to borrow and, therefore, that’s what caused the advance of monies.15 So I think that there is a factual question as to whether these advances were gifts, whether they were, in fact, loans, as [Jackson] now claims, or whether they were, in fact, compensation as [Green] claims at least part of the advances were for. Thus, while the jury ev entually decided that there were enforceable oral contracts, I do not believe that the facts of this case support Justice Markman’s assertion that the contracts’ express terms did not contemplate a delay in repayment. 11 The record only supports the fact that defe ndant asked to borrow money from plaintiff and that plaintiff respon ded by writing numerous checks . Moreover, the parties’ actions actually indicated that they did contemplate a delay in repayment because plaintiff continually made numerous loans to defendant over a term of years. It strains reason to conclude, as Justice Ma rkman does, that the parties expected

11 In fact, the jury’s ow n words belie Justice Markman’s contention that the parties did not contemplate delay in repaymen t. The jury stated that the oral loans were due at the time plaintiff’s claim wa s filed, which was ye ars after the loans were consummated. The jury answered a special interrogato ry form regarding each loan as follows: “[Plain tiff] established . . . that there was an enforceable contract between [plaintiff] and [defendant], that this check was a loan expected to be repaid and [that] repaym ent is now owed to [plain tiff].” The jury did not conclude that payment was owed upon delivery. Justice Markman disagrees because he thinks that “the mere fact th at the jury concluded that ‘repayment is now owed’ does not necessarily mean th at the jury either concluded that repayment was not owed as soon as the money was borro wed or that the parties did ‘contemplate delay in repayment.’” Ante at 4 n 3. I disagree. The jury was tasked to decide whether the claims were timely. The jury decided that all of plaintiff’s claims were timely and that payment was “now” due. “Now” could only mean at the time the ju ry made its decision because, if “now” also applied to when the loans were creat ed, many of the claims wo uld have been untimely because they came into existen ce more than six years before the claims were filed. Thus, the jury’s conclusions do not suppor t Justice Markman’s supposition that the parties did not contemplate delay in payment.16 payment immediately yet, despite never receiving any such immediate payment, plaintiff continued to make a dditional loans over several years. 12 Justice Markman also argues that Smith Estate limited its holding to cases in which a demand is necessary. Assuming th at he is correct, I do not see how this precludes the application of Smith Estate in this case. As Justice Markman notes, if “no time is set for the repayment of borrowed money, the loan is impliedly payable on demand.” Ante at 2, citing Colburn . It is uncontested that this case involves loans that set no time for repayment of the borrowed money. Hence, I think Smith Estate applies.

12 I do not point to these possible interpretations of the instant agreements’ terms to definitively say what the parties intended regarding delay in payment. Justice Markman mistakes my point if th at is what he sees as motivating my reference to them. Instead , I simply note that thes e facts undercut Justice Markman’s assertion that “the express terms of the instan t contracts no more contemplated delay than did the e xpress terms of the contract in Palmer [ v Palmer , 36 Mich 487 (1877)].” Ante at 4 n 3. This is important because Justice Markman’s position depends on equating Palmer ’s demand note with the instant oral contracts. Thus, I merely note that Justice Markman’s link of the two disparate types of agreements is not sup ported by their facts. Justice Markman also asks whether I would leave the stat ute of limitations i ssue to the jury. Ante at 4 n 3. He seems to think that my refere nces to this case’s facts and the jury’s conclusion undercut my adoption of the Smith Estate construct. I think that this opinion plainly notes that I conclude that, under Smith Estate , the statute of limitations issue for an oral loan having no specifie d time for repayment is a question of law for the court. That conclusion is not undermined by my pointing out that Justice Markman’s position of applying Palmer by analogy, which relies on the facts, is not supported by the fact s of this case. Moreover, the “express terms” debate that Justice Markman a nd I are engaged in shows how foolhardy undertaking such an endeavor is for this ty pe of oral loan. Yet that endeavor is required for Justice Markman to link Palmer to this case, whereas my approach requires no such legal groping.17 Justice Markman also suggests that applying Smith Estate here “anomalously provide[s ] those parties who never make a timely demand with a longer period in which to bring an action than those parties who do make a timely demand.” Ante at 4 n 3. I disagree that following Smith Estate ’s general rule that a demand is necessary to trigger accrua l causes anomalous results. Under Smith
Estate , the period in which to bri ng a claim is always six years— after accrual of the claim. Justice Markman and I simply disagree on when accrual should occur. His insistence (contrary to the general rule ) that accrual must occur at the loan’s inception is what causes his percep tion of anomalous results. Under Smith Estate , every claimant has six years to bring his cl aim after it accrues, which is triggered by a demand or the presumed demand, whic hever happens first. While I accept that Justice Markman disagr ees with this legal constr uct, I disagree with his assertion that it causes anomalous results, es pecially in light of his counterintuitive position that parties make oral loan s to each other and expect payment immediately. 13

13 Justice Markman accepts that oral loans are impliedly due on demand and that accrual occurs on that demand. Noting his acceptance of this, I am perplexed about why Justice Markman find s it anomalous that some oral loans accrue later than other oral loans. Hi s example shows that he thinks it is inappropriate that a lender who makes an immediate demand has less time to bring a claim than a lender who never makes a demand. Despite Justice Markman’s aversion to it, this dynamic does not contrave ne the theory that an oral loan is due on demand and accrual occu rs at demand. It seems that Justice Markman’s perception of an anomalous result is caused by something he already accepts: if “no time is set for the repayment of bo rrowed money, the loan is impliedly payable on demand.” Ante at 2, citing Colburn . Indeed, Colburn ’s holding18 Finally, Justice Markman adopts hi s immediate-accrual construct by incorporating the holding from Palmer v Palmer , 36 Mich 487 (1877). While conceding that Palmer and its progeny “addressed wr itten demand notes,” Justice Markman concludes that “there is no apparent reason why Palmer should not equally apply equally to an oral contract.” Ante at 6. I respectfully note several reasons why Palmer should not apply to oral cont racts like those in this case. Palmer , a case concerning a promissory note, held that “a note payable on demand is payable at once and without dema nd, so that the statute [of limitations] runs from its delivery.” Palmer , 36 Mich at 491 (emphasis added). This Court has defined a promissory note as “a written unconditional promise by one person to pay to another person therein named . . . a fixed sum of money . . . .” Parker v

necessarily puts the lender in a position to set when payment is due. Thus, Justice Markman is correct to note that this rule ca n conceivably lead to an oral loan being due in any length of time, as set by the le nder. If this is what concerns Justice Markman, it is Colburn that causes his consternation, not my application of Smith Estate . Nonetheless, I can sympathize w ith him because I too sense a conflict between the statute of limitations and a lender being free to harbor his claim indefinitely by not making a demand. Yet I do not think that the solution to this concern is to force the oral-loan square peg into the demand-note round hole. But that is what Justice Markman does by insistin g, against reason, that an oral loan is legally the same as a “dem and note,” which by its mere name indicates a demand upon delivery. See the discussion late r in this opinion. Instead, I find the Smith Estate construct to be much more applicable here because it was actually espoused to deal with this very issue. It hand les the concern that Justice Markman and I share because it precludes lenders from extending accrual of their claims indefinitely by only allowing such an ex tension for up to six years. Moreover, it avoids having the necessity of accepting the illogical premise th at, when an oral request to borrow money is accepted, repa yment is due at the instant the lender hands the money over to the borrower.19 Baldwin , 216 Mich 472, 474; 185 NW 746 (1921) (emphasis added). Further, “[n]o contract or agreemen t is a promissory note whic h does not provide for the payment of money, absolutely and unconditionally .” Id. (emphasis added). Thus, a promissory note is mo re than a contract to repay a loan: it is a written instrument that embodies a formal promise to repay. See MCL 440.9102(1)(uu) and (mmm); MCL 440.3104. The case at hand, howeve r, involves informal oral contracts, which do not meet the strict formalities of a promissory note. Therefore, in determining when the period of limitations begins to run on an oral contract that does not specify the terms for repayment, this Court should apply caselaw dealing with general breach of contract actions, such as Smith Estate , rather than those cases that deal with the hypertechnic al code of negotiable instruments. In addition, the only justification th at Justice Markman gives for applying Palmer is that doing so is supported by the policies that underlie the statute of limitations. While I agree with Justice Markman that those policies are strongly implicated when dealing w ith an oral agreement, Smith Estate properly addressed this issue without subjecting informal oral agreements to the more stringent rules regarding promissory notes. See Smith Estate , 91 Mich at 11-12. Also, unlike the parties in Palmer , the parties here did not formulate a written unconditional promise to repay within 30 days after demand. See Palmer , 36 Mich at 490. In contrast, here ther e were merely oral requests to borrow money, which prompted plaintiff to write 11 checks over a span of several years. While plaintiff expected that she wo uld be repaid, there were no specific20 agreements about repayment or promises to repay the borrowed funds. Thus, as noted, in contrast to Justice Markman’s as sertion, there were no “express terms” of the contracts that contemplated immediate payment. Finally, applying Palmer ’s view that the period of limitations begins to run on the date of delivery, and therefore no demand is necessa ry, is inconsistent with this Court’s declarations regarding basi c contract principles. In essence, Palmer puts the oral-contract borrower in immedi ate breach of the contract and thus makes a loan that had no specified time se t for repayment due immediately. This conflicts with our pronounceme nt that “when a contract is silent as to time of performance or payment, absent any expre ssion of a contrary intent, the law will presume a reasonable time.” Duke v Miller , 355 Mich 540, 543; 94 NW2d 819 (1959). Moreover, application of Palmer here contravenes common sense: informal oral loans are handshake agreemen ts that intuitively are not breached at the time of the handshake. It would be n onsensical to assume that informal loans that consisted of thousands of dollars would be due imme diately, as they would be under Palmer . My application of Smith Estate does not subject informal oral handshake-type agreements to the strict formalities of promissory notes, and it is consistent with this Court’s pronouncemen ts regarding basic c ontract principles. In sum, Justice Markman’s construct represents one end of the spectrum on this issue. He would have accrual occur at the inception of th e loan, which I think would prematurely trigger the running of the period of limitations because it contradicts both the facts of this case a nd this Court’s general pronouncements on21 oral contracts. In essence, Justice Markman gives the interests supporting the statute of limitations too much weight. Ju stice Young, in contrast, represents the other end of the spectrum. Under his c onstruct, the purposes of the statute of limitations are given too little respect becaus e a claimant can extend the accrual of his claim indefinitely. I recognize that both constructs represent good-faith attempts to balance the tenets of statut es of limitations with the countervailing principles of contract law. However, I find them both to be out of balance. I think that applying Smith Estate to this issue achieves the best balance between the concern of ensuring that contracts will be enforced and the co mpeting concern that claims will not become stale.
III. CONCLUSION For all these reasons, I would reverse the judgment of the Court of Appeal on both issues.

Michael F. Cavanagh Marilyn KellyS T A T E O F M I C H I G A N
SUPREME COURT

JOAN B. JACKSON, Plaintiff-Appellee,
v No. 136423 ESTATE OF RONALD GREEN, Defendant-Appellant.

WEAVER, J. I believe that leave to appeal was improvidently grante d in this case because the result reached by the Court of Appeals in this case is correct.

Elizabeth A. Weaver Diane M. Hathaway