144 Mich. 523 | Mich. | 1906
Complainant filed the bill of complaint in this suit, as special administrator of the estate of Augusta W. Brown-Burgess, for an accounting between said estate and the defendant Burgess, and to have a certain deed from decedent to said Burgess determined to be a mortgage and the amount due thereon, if anything, ascertained. Burgess became acquainted with Mrs. Augusta W. Brown about the year 1891, and soon thereafter began to main
Mrs. Brown began loaning money to Burgess, March 12, 1891, when she loaned $1,500 on chattel mortgage security to the firm of Lennox & Burgess. From this time on there were numerous transactions between them, and it is conceded by his counsel that on March 20, 1896, Burgess was indebted to Mrs. Brown in the sum of $300 or $400. It is also agreed by counsel that the accounting should begin with the last-mentioned date. The evidence presented in the record as the basis for the accounting consists, in the main, of bank books, checks, check stub books, notes, bills of sale, deeds, and memoranda, which are quite vague, incomplete, and unsatisfactory. Counsel for complainant also read in evidence, as admissions, extracts from the testimony of Burgess given at the hearing of the case of Burgess v. Stribling, supra. Upon complainant’s resting, defendants’ counsel called Burgess as a witness, and, against complainant’s objection, examined him upon the whole case. Defendants’ counsel also offered in evidence the complete testimony of defendant Burgess on the former trial, from which complainant’s counsel read extracts. This last testimony is not printed in the present record, but we are referred by counsel to the record in Burgess v. Stribling, supra.
It is contended by counsel for complainant that the testimony of Burgess is incompetent, under section 10212, 3
“ I got the deed to this farm in July, 1897. I did not at that time and never had a settlement with Mrs. Brown. The deed was given to secure me until such time as we had a settlemen.t. I do not know exactly how much Mrs. Brown owed me at that time. I think she would owe me $1,500. I never had reason to find out how much she owed me. It was not my suggestion that she give me the deed to this property. She gave it to me without my knowing she had it made out. I was not present when it was made out, and never talked over the transaction with her before the deed was made. I had talked to her about wanting security before that time for what she owed me, but not about this particular piece of property. I didn’t have a great deal of money at that time.”
Complainant also read in evidence from the former case the following as an admission:
‘ ‘ Q. Do you know how much she owed you at the time she died?
“A. Not exactly.
“ Q. Know anywhere in the neighborhood ?
“A. No.”
These admissions and others, read in evidence by the complainant, went to the merits of the entire case made by the bill, and without them complainant could not have sustained his bill at all as to the mortgage -character of the deed. The case is not distinguishable in principle from the cases above cited.
“The circuit court took the view that the consideration expressed in the deed, viz., $2,000, was a virtual acknowledgment by Mrs. Brown that her debt was at least the amount she had voluntarily expressed in the instrument as its consideration, and to that extent the amount of decedent’s debt to Mr. Burgess was established by competent testimony.”
We are unable to concur in this conclusion. Undoubtedly, a presumption of fact obtains, in the absence of evidence to the contrary, that the sum mentioned in a mortgage as the consideration therefor is correctly stated. Wiswall v. Ayres, 51 Mich. 324. But in this case the defendant himself overthrows the presumption. In his previous testimony, he admitted that Mrs. Brown did not owe him $2,000 at the date of the deed, and that he did not “ know anywhere in the neighborhood” of how much she owed him at the time of her death. He further testified in the Stribling Case:
“That 40 acres deeded me is worth $1,300. It was given me to secure an indebtedness, but I couldn’t tell how much the indebtedness was.”
He does not pretend in this record to state what the indebtedness was, but claims that he repeatedly asked for a settlement to determine the amount, which he was unable to obtain. According to his testimony, the mortgage was not given to secure an ascertained indebtedness, but to secure the payment of sucli sum as should afterwards be found due upon an accounting, and, under such circumstances, the burden was upon him to show what that sum was.
The only plausible basis for an inference that she owed him anything - at the time of making the deed or at the time of her death must be found in his unsupported
“About this time I had borrowed some money from her —several hundred dollars — and I got in ill health, and I gave her a bill of sale of what I had. Just gave her a bill of sale of it. It was not my property after that. That bill of sale was given to secure the debt I owed her. 1 am sure about that. We bought the Mission property together. She and I bought that property together, but she furnished the money. I had something like $2,500 standing out at that time, and I expected to be able to collect it, and I bought the property on the strength of that, and when I could not do it — yes, sir; I bought the property on the strength of my outstanding accounts and paid for it in that way. Mrs. Brown furnished the money. I don’t remember whether I transferred the outstanding accounts to her or how that was fixed. It was bought in our joint names and I afterwards transferred my interest to'her when I found I couldn’t collect what I expected to.”
There was no distinct claim in that case, as in this, that the bill of sale of March 20, 1896, was given to secure the payment by Burgess of his portion of the purchase price, but the natural inference is that he “ paid for it ” with the accounts, which were not covered by the bill of sale at all but retained by him, and that the bill of sale was given to secure an existing indebtedness independent of the purchase of the Mission property, which was not purchased till April 16, 1896, nearly a month afterwards. After the bill of sale of the livery stable property, Burgess worked for Mrs. Brown for wages, and on March 10, 1897, she sold the major portion of the property for $1,700 for
Mrs. Brown, when Burgess went to live with her in 1894, was a comparatively well to do woman, a money loaner, while he was a man of slender means, of dissolute habits, and a borrower. His relations to her naturally gave him a great influence over her, and after 1897, and until the appointment of a guardian, I am satisfied that he practically had charge of her affairs. Mrs. Brown paid the household expenses, Burgess paying nothing in any way, and she bore the expenses of both outside the State. He admitted upon the witness stand that, since July or August, 1898, she “had to have somebody to do her business for her,” and that he had verbal authority to sign her name to checks. He had access to all of her private papers and books of account, and they were under his control for two or three weeks after her death. Among these books was one book which contained his account with her, and this book he claimed he could not find after her death, and did not know what had become of it. The basis of the indebtedness claimed to be secured by the deed rests upon his unsupported testimony as to the consideration for the bill of sale of the livery property, .and every act of his with reference to that property disputes his claim that that bill of sale was a security. His claim that he was unable to get a settlement with Mrs. Brown is not consistent with his relations to her as disclosed by the record, and there is no good reason why, if she was indebted to him, he should not be able to state with reasonable accuracy what that indebtedness was. He states repeatedly that he does not know what the amount of the indebtedness was which was secured by the deed, and there is room for doubt upon the record whether the deed had ever been delivered to Burgess, and
The influence which Burgess possessed over this woman, her helpless physical condition, and her feeble mental condition, the trust and confidence necessarily reposed in Burgess, cast upon him the burden of showing not only the true consideration of the bill of sale and deed, but that his transactions with her were fair and honest, and that there has been no abuse of her confidence. Ten Eyck v. Whitbeck, 156 N. Y. 341.
I think he has failed to discharge the burden of proof, and that it must be held that no sum has been shown to be due upon the security, and that the same should be canceled. The defendant, having failed to show that there was anything due upon the alleged mortgage indebtedness, must account for the income derived by him from the mortgaged premises, shown by the record to be $125 per year, from the date of his wife’s death, with interest at 5 per cent. He must also account for the avails of the $400 mortgage on the Stratton farm, with interest at 7 per cent, from the date thereof, and for the amount of the $300 check of March 8, 1898, with interest at 5 per cent, from that date.
A decree may be entered in accordance with this opinion, with costs of this court to complainant and appellant against the defendant John W. Burgess.