If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

MYRA C. TOROVICH,

Plaintiff/Counterdefendant

Appellee, UNPUBLISHED March 5, 2019

v No. 342967

Oakland Circuit Court JOSEPH ODDO, LC No. 2017

- 162229

- CZ

Defendant/Counterplaintiff

Appellant.

Before: T UKEL

, P .J., and S HAPIRO and G ADOLA , JJ.

P ER C URIAM

.

Defendant appeals by right the trial court’s order granting summary disposition and quieting title in favor of plaintiff. For th e reasons stated below, we affirm. 1

I. BACKGROUND

In 1979, plaintiff purchased real estate pursuant to a land contract. Plaintiff ma rried

Thomas Torovich in 1981. In 1985, plaintiff conveyed the property to herself and T homas via a recorded quitclaim d eed. In 1992, T homas unilaterally granted a mortgage on the property in

favor of defendant to secure a debt . The mortgage described T homas as “a single man” and plaintiff’s name does not appear anywhere in the recorded document. Under the mortgage’s terms, payment was due in March 1993. Plaintiff and T homas paid off the land contract, and in

1 The trial court granted plaintiff summary disposition under MCR 2.116(C)(10), a decision we review de novo. See Pace v Edel

- Harrelson , 499 Mich 1, 5; 878 NW2d 784 (2016). “In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a

trial.” Walsh v Taylor , 263 Mich App 618, 621; 689 NW 2d 506 (2004).- 2

- 1994 the property was deeded to plaintiff

. T homas died in 2015, leaving plaintiff as the sole remaining owner of the property.

In November 2017, plaintiff brou ght suit to quiet title and to extinguish defendant’s
mortgage. Defendant filed a counterclaim, requesting that the trial court declare the mortgage valid and enter a monetary judgment against plaintiff for the unpaid balance of the mortgage plus

interest . Plaintiff moved the trial court for summary disposition under MCR 2.116(C)(7), (8) and (10). She argued that she and T homas co

- owned the p roperty as tenants by the entirety and that

the mortgage was invalid because she did not join her husband in signi ng it. In response, defendant contended that the mortgage was valid because plaintiff subsequently ratified it. The trial court agreed with plaintiff and granted her summary disposition and quiet title. The court

also determined that defendant’ s counter claim was barred by the statute of limitations.

II. ANALYSIS

In Michigan, a conveyance of real property to a husband and wife is presumed to create a tenancy by the entirety. DeYoung v Mesler , 373 Mich 499, 504; 130 NW2d 38 (1964). “ A tenancy by the e ntirety is a type of concurrent ownership in real property that is unique to married persons .” Tkachik v Mandeville , 487 Mich 38, 46; 790 NW2d 260 (2010). Each spouse is considered to be an owner of the whole property, and neither spouse has an individua l interest in the property separate from the other spouse. Canjar v Cole , 283 Mich App 723, 730; 770 NW2d 449 (2009). When a married couple holds real property as tenants by the entirety , neither spouse acting by themselves can alienate or encumber their interest in the property

. Id . A husband or wife must receive the consent of their spouse before conveying or encumbering an interest in the property. Id

. A tenancy by the entirety is also created when a married couple acquires real property via a land contract. 2 Dow v State , 396 Mich 192, 198 n 10; 240 NW2d 450 (1976).

2 We also note that a “transfer of ownership of property” occurs when there is “[a] conveyance by land contract.” MCL 211.27a (6)(b) . Plaintiff obtained equitable title to the property in 1979, Graves v American Acceptance Mtg Corp

, 469 Mic h 608, 614; 677 NW2d 829 (2004), and thereafter conveyed that title to her self and her husband.

Conveyances in which the grantor or 1 or more of the grantors are named among the grantees therein shall have the same force and effect as they would have if th e conveyance were made by a grantor or grantors who are not named among the
grantees. Conveyances expressing intent to create a joint tenancy or tenancy by

the entir eties in the grantor or grantors together with the grantee or grantees shall be effective to create the type of ownership indicated by the terms of the

conveyance. [MCL 565.49.]

The quitclaim deed executed by plaintiff does not specify what type of ownership w as created.

But “ in the absence of an expression of a contrary intention ,” it is presumed that the grantor intended to create a tenancy by the entirety. Butler v Butler , 122 Mich App 361, 366; 332 NW2d 488 (1983).- 3

- Defendant does not dispute that plaintiff and T homas owned the property as tenants by the entirety when the mortgage was executed in 1992

. Thus , T homas could not separately mortgage his interest in the property at that time. And in the absence of plaintiff’s signature, the mortgage was void. See Forge v Smith , 458 Mich 198, 206; 580 NW2 d 876 (1998) (“ All owners of jointly held property must sign a contract conveying an interest in the property; the absence of a signature by a co

- owner renders the contract void. ” ). Accordingly, the trial court correctly concluded that the mortgage was in valid and unenforceable.

Nonetheless, d efendant contends that the mortgage is not void because plaintiff subsequently ratified the agreement. However, contracts that are void a b in i tio may not be

ratified. Utica State Sav Bank v Village of Oak Park , 279 Mich 568, 579; 273 NW 271 (1937). Because plaintiff and T homas owned the property as tenants by the entirety, the mortgage was void without plaintiff’s signature. P laintiff could not ratify the mortgage when it was

unenforceable from its execution. Th erefore, plaintiff’s knowledge and understanding of the mortgage is immaterial, and the trial court did not err in granting summary disposition before defendant conducted discovery on those matters. 3 See Oliver v Smith , 269 Mich App 560, 567;

715 NW2d 31 4 (2006).

We also agree with the trial court that defendant’s counterclaim is barred by the statute of

limitations. MCL 600.5807(5) provides that “[t]he period of limitations is 10 years for an action founded on a covenant in a deed or mortgage of real e state.” MCL 600.5803 provides that no person may foreclose on a mortgage unless the action is commenced within 15 years of either the due date of the mortgage or the last payment made on the mortgage. T he due date of the

m ortgage was March 1, 1993, over 24 years prior to the commencement of this case . Even if the mortgage was valid, defendant cannot foreclose on the mortgage or recover damages from plaintiff because each of the applicable limitation periods has passed.

Affirmed.

/s/ Jonathan Tukel

/s/ Douglas B. Shapiro

/s/ Michael F. Gadola

3 We note that defendant relies on a “subordination agreement” that was recorded in 1994. In that document, defendant agrees to subordinate his mortgage to a mortgage purportedly executed by plaintiff. However, plaintiff was not a party to agreement and w e thus fail to see how this is evidence that she ratified defendant’s prior mortgage. In any event, as discussed, plaintiff could not ratify the mortgage, which was void ab initio

.