216 Mich. 224 | Mich. | 1921
Earlier efforts to get for the defendant lands left him by the will of his grandfather are In re Barney’s Will, 187 Mich. 145, and Howes v. Barney, 199 Mich. 569.
On August 11, 1898, Oliver Barney and Phoebe J. Barney, his wife, executed a deed of the lands in question here to their grandson, Oliver W. Barney, the defendant. The deed reserved to the grantors the use and control of the lands during their lives, and it was left with the attorney who drew it. Oliver Barney died February 12, 1900. The deed was recorded February 23, 1900. Fred W. Barney, son of Oliver and father of the defendant, claiming to have had no knowledge of the deed and alleging that his father died intestate seized of the said lands, applied to the probate court of Calhoun county for the appointment of an administrator of the estate. The appointment was made July 20, 1900. The only claim presented was that of Fred W. Barney, which was allowed September 24, 1901, in the sum of $450.45. Fred W. Barney filed a bill against his mother to set aside the life estate in said lands as
“My father asked me to go up there and sign a paper that would fix matters in regard to grandfather’s property so that my grandmother could not leave it to her family, the Hendershot family, at her death.”
He also testified that he knew nothing of the making and recording of said deed until 1913. On June 5, 1902, decree was entered, finding the allegations of the bill to be true, setting aside the deed and determining that the said lands were the property of Fred W. Barney as the sole heir at law. The decree was recorded in the office of the register of deeds for the county on December 20, 1902. Upon receiving the lease from his mother, Fred W. Barney went into possession of the lands and has since continued in possession. Oliver W. resided with his father until
As we are able to gather from the briefs, the questions raised by appellant are:
1. That the cross-bill is a collateral attack upon the decree of June 5, 1902. The cross-bill does not attack that portion of the decree in which the deed was set aside, that portion which the chancery court had jurisdiction to make, but it attacks that portion of the decree wherein the chancery court sought to determine that Oliver Barney had died intestate and that Fred W. Barney was the sole heir at law and as such the absolute owner of the lands in question. The bill of complaint in that cause shows that the probate court of the county had issued letters of administration of the estate and had jurisdiction of the same. The determination sought to invade the jurisdiction of the probate court and was a nullity and open to the attack here made by the defendant. See Tipson v. Jeannot, 204 Mich. 403; Brooks v. Hargrave, 179 Mich. 136; People v. Wayne Circuit Judge, 11 Mich. 393 (83 Am. Dec. 754); Greenvault v. Farmers, etc., Bank, 2 Doug. 498; Winegar v. Newland, 44 Mich. 367; Kellogg v. Aldrich, 39 Mich. 576; In re Andrews’ Estate, 92 Mich. 449 (17 L. R. A. 296); Tromble v. Hoffman, 130 Mich. 676; Adams v. Hubbard, 30 Mich. 104; 23 Cyc. p. 1073.
2. That defendant should be held to be estopped
“But mere lapse of time does not necessarily constitute laches. As a rule it involves other considerations. It means that negligence or omission to assert a right which, considering the lapse of time in connection with other facts and circumstances prejudicial to the interests of the adverse party, render it unjust and inequitable to recognize such right when finally asserted. * * * Where the situation of neither party has changed materially, and the delay of one has not put the other in a worse condition, the defense of laches cannot as a rule be recognized. Parker v. Hotel Co., 96 Tenn. 252 (34 S. W. 209, 31 L. R. A. 706).”
Plaintiff claims prejudice by the delay in the loss of witnesses against the will. An examination of the record does not disclose merit in this contention, and there is creditable testimony of witnesses that plaintiff knew of this will soon after the death of the testator and that he said:
“He said the will was made to Oliver but he was not going to let him know anything about it until he got older. That boys were apt if they thought they had property not to take any interest in anything else, if they had plenty to do with without work and he thought Oliver would do better if he did not let him know anything about the will.”
Knowledge of the existence of the will does not square with the claim of prejudice. The trial judge found that no considerable improvements upon the
“The relationship of .the parties is entitled to great weight when the question is one of laches in taking hostile steps, and the same prompt and energetic proceedings which would be expected in other cases ought not to be demanded of near relatives, not only because they may naturally and commendably be reluctant to engage in litigation, but also because they ought to be able to rely more on substantial justice being voluntarily done them by a member of the family than by a stranger.”
Defendant’s right to the relief prayed is not barred by laches.
3. It follows from the foregoing that plaintiff’s claim of title by adverse possession is without merit. Nor are we inclined to disturb the provision of the decree wherein plaintiff’s claim against the estate was set off against the claim for use and occupation.
4. It is said that defendant may not upon his cross-bill have his title under the will quieted, he not being in possession, citing 3 Comp. Laws 1915, § 12302. Of this the trial court correctly said:
“I am of the opinion that this position is not well taken because since the plaintiff enjoined the defendant from instituting a proceeding at law whereby he sought to dispossess the plaintiff from the premises; he cannot now be heard to say that the proceeding cannot be heard in this court in equity. The plaintiff has compelled the defendant to come into this*231 court and therefore all matters pertaining to the subject-matter of the suit should be adjusted in this one proceeding.”
The decree is equitable, and it is affirmed, with costs to defendant.