21 Mich. 438 | Mich. | 1870
This was a bill praying (among other things) for the partition of a certain farm in the township of Franklin, in the County of Lenawee, described as being eighty acres off the north side of the southwest quarter of section seven, in township five south, of range three east; complainant claiming to be equitably entitled to twenty-two and a half sixty-fourths in fee, subject however to the dower of his mother, Agnes Campbell, in the farm, which had not yet been assigned.
The derivation and state of the title was this: John Brears, then the owner of the land, sold, and undertook to convey it to one Benjamin Ayers, in November, 1831. But, by mistake, no sufficient description of any land was inserted in the deed. Ayres, however, seems to have occupied it for years without suspicion of the defect, and without any claim from Brears, who seems to have died in ignorance of the mistake; and in January, 1845, Ayers, in good faith, conveyed the land to Andrew Campbell, the father of complainant, for the price of seven hundred and forty dollars, of which three hundred and eighty-one dollars was paid down, Campbell executing back to Ayers, a mortgage for three hundred and fifty-nine dollars purchase money, upon interest.
Andrew Campbell, ignorant of the defect or want of ■jtitle, went at once into possession, improving the same and
The widow, who still continued to live upon and manage the farm, and brought up her family there (as will be more fully noticed hereafter) having fully paid off the mortgage given by her husband and taken an assignment of it to herself in 1853, afterwards, in 1859, having become aware of the defect in the deed from John Brears to-Ayers, applied to Thomas Brears, the son and sole heir of John Brears, and for a nominal consideration (but without any payment in fact) obtained from him a quit-claim deed of the land to herself, by a proper description. In 1864 the complainant and his brother James, one of the defendants, purchased the right and interest of three of the sisters, Marion, Nancy and Hannah, and took from them a quit-claim deed, paying each of them one hundred dollars therefor.
Complainant claims, 1st. That the equitable title having belonged to his father, and the deed of Thomas Brears to his mother, intended by the grantor only to correct the error in the deed to Ayers, and having been given without any new consideration, ought, in equity, to inure to the benefit of the mother, and all her children then living, according to the respective interests that each of the children would have held if a good title had vested in their father; and that such was the intent of both parties at the time she took the deed. 2d. That the mortgage was paid off and the notes destroyed before it was assigned to her, and that it was paid from the income and avails of
The defendants, Agnes, James, and the two sisters, who have not sold out, insist in their joint and several answer and in their testimony, that of the amount paid down by Andrew Campbell upon the land, over two hundred dollars was paid by notes which belonged to said Agnes; that her husband on his deathbed gave her the farm, on condition that she should pay off the mortgage and support the family; that she did support and bring up the family at a cost exceeding all the. help rendered by them to her; that she paid the mortgage and had it assigned to her for her own benefit; that the deed was obtained by her from said Thomas Brears, with the intent, and with consent of complainant and the other heirs,' that she should hold the title and have the use of the farm during her own life, they to have their respective shares after her death; that
And finally, if the Court should find that complainant is entitled to any present remedy, he having no legal title, and being compelled to seek the aid of a court of equity to procure it, he is bound to do equity. And they insist that the mother is equitably entitled to an additional share in the land corresponding to the proportion of the original purchase paid by the notes which belonged to her, the mortgage and interest paid by her, and the increased value of the farm by reason of the buildings and other improvements 'she had put on it, and they aver that complainant was fully paid for the house he erected by four years’ use of the farm under his own agreement with the mother, and for any extras, by personal property, which he received of her for that purpose.
As to the part-payment for the farm made by the notes, which had belonged to the mother, we think the fact that she consented to the transfer of the notes by her husband in payment for the land, and to his taking the title in his own name without insisting upon any agreement for repayment or conveyance of any interest to her, must be considered as conclusive evidence of the gift of the notes to her husband, and without any intention or right on her part, to reclaim on that account, any interest in the land as against him or his heirs. As to the verbal gift
As to the legal title which she obtained by the deed from Thomas Brears, the evidence shows that the main object in obtaining the deed, and the only object of the grantor in making it, was to correct the error in the deed made by his father to Ayers; that until after the deed was applied for and he had assented to give it, it had not occurred to either of them to whom the deed was to be made for this purpose, and that the Notary who was called on to draw it, first suggested that a deed to a dead man would not be good, and that it could not therefore be made to Andrew Campbell, whereupon the widow suggested that it should be made to her, as she had paid for it; and it was so executed, without any new consideration. And we infer from all the circiimstances, that the widow, though taking the deed in her own name, did so with the idea of securing the rights of the children as well as her own,, without any intention of ultimately claiming the title in fee as against any of them, though, as we think probable, with the intention of holding the land for her own life, and managing the same as she all along had done, and upon her death that her children would be entitled to it; though we think she based this intention and this opinion of her rights, not more upon this deed than upon the idea
It is quite clear that at the time complainant and James purchased the shares of their three sisters, those sisters understood they had no right in the land during the life of their mother, and that complainant so represented to them; and the price given to the sisters, which was not to exceed one-third of the value of their interests, if they held in fee, confirms this idea. And James, who was a co-purchaser with complainant, testifies that such was his view of his mother’s rights and those of the heirs; and he and his two sisters, who had not sold out, insist in their answer upon the right of their mother to hold the farm for her life under the Brears deed.
But whether they are or are not now estopped to claim in this suit as against her any interest in the land, except the reversion subject to the life estate, I can discover no satisfactory evidence of the complainant’s assent to his mother’s taking the deed in her own name, and for her own exclusive benefit, nor that he has given any irrevocable assent since the ■ deed, that she should, as against him,
But as the legal title is vested in the mother, and he is obliged to call for the aid of a court of equity to obtain the legal title to his share, he must submit to do equity, and can only have relief upon the terms of allowing to the mother and the other heirs all the equities in their favor growing out of all the circumstances of the case. We must therefore consider what these circumstances are, as disclosed by the evidence.
At the death of the husband, the widow was left with
Such were the slender means with which the debts' and the mortgage on the farm were to be paid, 'and the family to be brought up and supported by the widow. The task was one from which an able-bodied man, though stimulated by the strong motives of parental attachment, might well have shrunk. But with a self-sacrificing devotion which no mere pecuniary compensation could ever stimulate or reward, and of which a mother alone is capable, she nerved herself to the task, and after years of unceasing effort accomplished it.
Wisely, as the result has shown, she determined to avoid the expense of administration. She paid the debts,, paid and took up the mortgage, and with such aid as the older children, and the others in course of time could give her, she raised and supported the family, till the ¡daughters were married and the sons arrived at maturity,, and were able to make their way in the world. To accomplish the result, she worked incessantly, in doors and out,
Shortly after the death of John, complainant, about the time he became of age, made a contract with his mother for the use of the farm for four years, he to have as his own, all the horses and live stock on the farm, with certain specified exceptions, the use of all farming implements, etc., and the labor of his younger brother, James, and the family to have their living from the farm, all living together, as one family; and, in consideration of what he could make beyond the support of the family in this way, he was to buid a new farm dwelling-house of specified dimensions. This agreement was performed. He built the house considerably larger than agreed, painted it and put in a cistern. But, on the other hand he was paid by his mother, in stock and otherwise, more than originally agreed, and, as she claims, all the excess of cost. He, however, denies that the whole was paid, though he admits the agreement and the four years’ use of the farm.
After the expiration of this four years, the farm was
Under this arrangement they kept the farm near seven years, and seem to have given it up in the fall of 1866 or the spring of 1867, dividing with the widow the crops then growing on the ground, or attempting to do so. But in the spring of 18fi7, ivhen complainant seems to have left the house, he got into a quarrel with his mother about certain property in the cellar and crops on the ground, and then, for the first time, set up a claim of right in the faina as against his mother, and threatened to bring suit against her.
While he and James had the farm under their arrangement, they had built a barn upon it, which by the arrangement they were not bound to do, and for which it is not claimed they received any compensation, except the use of it while they had the farm.
These improvements are still upon the land and give it an increased value, but whether to the full extent of their cost, we are not informed by the evidence. But if either party (the widow and .the other heirs who are defendants, on the one side, or the complainant on the other) has contributed more to the improvements than the other, in proportion to their respective interests, then, upon equitable principles, the inequality should be adjusted in the partition, if any certain and intelligible basis can be discovered by which this can be done.
By their answer, the defendants, James, Jennette and Elizabeth have, we think, estopped themselves from claim
The result, I think, is the same, as if at the time he built this house, he had already become the owner of the interests, since obtained from the three sisters. And, as the house was made larger, and the cistern constructed with the approval of the mother, this may be taken as a part of the agreement, except that he was to be compensated for any excess in the improvements made beyond the cost of such house, as was specified in the agreement, in addition to the compensation there provided.
But these improvements were to be made on the farm, of which he then owned one-eighth and one sixty-fourth, and has since obtained thirteen and a half sixty-fourths, with the same rights, as if he had owned the latter when the improvements were made. These improvements, therefore, must be held to have been made for the common benefit of the property, of which he owns twenty-two and one-half sixty-fourths, and bis mother (as above explained for the purposes of this suit) forty-one and a half sixty-fourths; and each should equitably contribute to them in this proportion.
If, by the understanding of the parties, the improvements originally contracted for, or those actually made were to have been, or were, actually paid by the use of the farm alone, (which must be treated as the common property of the widow and the complainant, in the proportions just stated) the case would be very clear; for then the share of each would have contributed in its due proportion. But
But precisely here, in my view, arises the difficulty. There were several considerations for the single contract of complainant for making the improvement, and it is impossible to ascertain the relative value or importance of each in the minds of the contracting parties, or either of them; how much the use of the farm was estimated by complainant to be worth to him, or what his mother valued it; how much the use of the personal property, the labor of James, etc., and the relative value of each. The contract was silent upon this point. The parties had jumbled all the considerations together as one and entire; and we •cannot apportion, nor could the evidence of witnesses enable us to apportion the various considerations, assign the separate and relative value to each; and say how much was paid by the use of the farm- alone, without making, in effect, a new contract to which it is by no means certain the parties would have assented; especially, as the improvements were to be made upon the farm, of which each had a share. There is another point connected with these improvements and the consideration which complainant was to receive as the inducement, which must not be overlooked. From the nature of the case, as already noticed,
While, therefore, as far as I can judge from the evidence, the widow probably paid something beyond her share towards these improvements, there is no safe or intelligible legal or equitable basis, under the loose arrangement made by the parties, by which the excess can be calculated or ascertained. I think, therefore, nothing can be allowed to the widow for these improvements.
But this is the less to be regretted, because she has had the use of them, and because the complainant’s claim for half the expense of building the barn, is also subject to a like infirmity.. He and his brother built it while they had the farm for an indefinite period. They were not bound to build it, nor does there seem to have been any request of the mother to that end. From the evidence we are satisfied, that much, if not the whole of their inducement for its erection was the use and convenience they expected to derive, and did derive from it, while they held the farm on the terms of the agreement. The uncertain equity, therefore, in favor of complainant, connected with the barn, may be considered to balance a like uncertain equity in favor of the widow with respect to the house. At all events this — owing to the loose mode in which the parties dealt with each other — is the only disposition we can well make of it. As to the improvements made by clearing up the farm, the evidence shows but very little. We judge from it that they were principally made while the widow carried on the farm,
As to the mortgage paid by the widow, it is unnecessary to determine whether she, having paid off the mortgage and canceled the accompanying notes or evidence of the debt before the mortgage was assigned to her, could acquire or continue strictly a lien upon the land for the amount; since complainant is compelled to ask the aid of a court of equity to obtain from his mother the legal title; and the Court, according to the recognized principle in such cases, are bound to give him that relief only on the condition of his recognizing all the equities in her favor. And I think she is equitably entitled to compensation for the mortgage paid by her, except such proportion thereof as should be borne ratably by her interests inherited from her son John and her dower (so far as the latter is chargeable with the interest upon the mortgage as explained below).
The mortgage was a lien upon the whole property, and all except the portion corresponding to her own interest was so much money paid to the use of the other part owners and to remove a lien upon their interests, and complainant on partition should make good to her, his proportion, twenty-two and a half sixty-fourths (being the sum as stated below as now due) either by way of money compensation, 'to be paid before the commissioners proceed to set off his share, with interest from this date, on the sum stated below as his proportion of principal, on account of the mortgage, or by having a corresponding amount in
In estimating complainant’s share of the encumbrance, it is not necessary to notice particularly the other shares of the land held in fee, but as between the owners of the fee and of a life estate in the same encumbered property, it must be remembered that the life estate is to keep down the interest, as its share of the incumbrance, and the fee is to be charged with the principal.—Saville v. Saville, 2 Atk., 463; Shrewsbury v. Shrewsbury, 1 Ves. Jr., 233; Warley v. Warley, 1 Bailey Eq., 397; Mosely v. Marshall, 27 Barb., 42; 4 Kent’s Com., 74 to 76; except, perhaps, where the rents, or use of the property, is less than the interest (Kensington v. Bouvierie, 31 Eng., L. & Eq., 345), which clearly was not the ease here.
The widow had from the death of her husband a life estate in one-third of the premises as her dower, and must be charged with the interest on one-third of the encumbrance from the death of the husband. The fee must pay the whole principal and two-thirds of the interest, and must also be charged- as principal with all the interest which had accrued before the death of the husband, when the life estate commenced.
The widow having paid the whole principal and interest^ is, as between herself and the other owners of the fee, to be allowed to treat the two-thirds of the interest paid by her on account of the fee, as so much principal from the time the respective installments became due, and to charge interest on the same from such respective times.
The complainant’s twenty-two and a half sixty-fourths of the encumbrance paid by her, calculated upon these principles, amounts at this date to three hundred and twenty-five dollars and twenty-one cents, and the amount of principal (included in the above), upon which he is to be
The decree in the court below was for a partition setting off the shares of all the heirs, as well as that owned by the widow. But I am at a loss to discover upon what principle this can be done, where all the other heirs having an interest are defendants, and have joined with the mother in asserting, by their answer, the right of their mother to the whole land for life, insisting upon her right so to hold it, and objecting to any partition of it during her life. Shall the Court force their shares upon them against their will? As between those heirs and the widow, this, it seems to me, is as complete a disclaimer of all right to the land till after her death (so far as this suit is concerned), as if they had given her a quit-claim deed of a life estate.
Complainant’s share should be so set off as to leave one-third of it to be designated by metes and bounds, subject to his mother’s life estate therein, as her dower in his share of the estate.
The decree of the Court below must be reversed with costs in this Court, and a decree entered in this Court in accordance with the principles above laid down, and the record must be remitted to that Court for such further proceedings as may be necessary to carry this decree into effect, and for a final decree in partition.