Docket No. 153 | Mich. | Dec 21, 1915
The bill of complaint in this cause alleges duress, fraud, and want of consideration as grounds for setting aside certain instruments, to wit, a deed executed by the complainants on the 17th of August,
The decree of the court dismissed the bill of complaint, but held that, as to the complainant Marie Dallavo, her deed to the land in question was without legal consideration, and the conveyance to Henrietta Dallavo was confirmed, subject, however, to the dower rights of said Marie Dallavo therein, and the life lease to John Dallavo. From this decree the complainants have appealed.
The complainant John Dallavo, who was an Austrian by birth, was married in 1880 to the defendant Henrietta Dallavo in Germany. While serving a prison sentence in Germany for subornation of perjury he escaped, and found his way to this country about 1886, and settled near Howard City in this State, where he was joined later by his wife and three children. He engaged in the lumber business, and carried on a general business in connection therewith, and through the joint efforts of himself and his wife, who in addition to her family cares and duties, boarded the men employed, took principal charge of the business affairs, kept the books of account, did the buying and selling, etc., they accumulated about $50,000 in property, and reared a family of ten children. After he became prosperous, however, he became faithless to his wife and consorted with other women, which conduct on his
In 1907 they sold their lumber business in Green-ville to the older two sons for $8,000, which was paid in the form of notes, which were equally divided between the father and mother. In 1908 there was a mutual division of the title to the real estate accumulated through their joint efforts, because he was at that time contemplating the purchase of a large track of timber, in the South and desired to mortgage his property for the purpose of raising money for that purpose, and his wife did not wish to join in the scheme. The property conveyed to her at that time was approximately of the value of $7,250, and the properties left in the complainant were variously estimated to be worth from $20,000 to $36,000. His conduct with relation to other women continued, however, and finally culminated in February, 1911, in her retaining the defendant Palmer to file a bill for divorce, which was later dismissed by her. During the fall and winter of 1911 and 1912 he lived with another woman, who afterward brought suit against him for breach of promise of marriage.
In the summer of 1911 one of his daughters, becoming ill, was advised by her physician to go to California, whither she was accompanied by her mother, Mr. Dallavo providing part of the money necessary for the expenses of the trip. She left Grand Rapids in August, 1911, and returned October 14th of the same year. The complainant came to the house where she was staying and saw the mother and children, and visited with them. In September, while she was in California, he went to Grand Haven, Mich., and through an attorney there filed a bill for divorce, alleging that he was a resident of Ottawa county, and that his wife
The first one of the family to talk with Dallavo about his divorce was his son Joe, who lived at Greenville, and who saw a notice of the marriage in the paper, and informed his mother about it. On her return to Grand Rapids in August, 1912, to visit her daughter, she called at the office of the prosecuting attorney of Kent county, to inquire as to the legality of the divorce proceedings, which were prosecuted without notice to her. The assistant prosecutor who advised with her said he would write to Dallavo and ask him to come in and explain the. proceedings, which he did. The next morning, about 5.o’clock, Dallavo called his wife by telephone, and requested an interview with her apart from the children, which she granted. When she met him he begged her not to make complaint against him, and not to have him sent to jail. After some talk it was agreed that if no trouble was made for him he would give her a deed to a farm at Wyman and pay her $30 a month for the support of the three minor children as long as they remained in school. They went to the office of a notary public, where this agreement was carried out, a-deed being made to their daughter Louise, she in turn deeding to her mother.
The same day she took a train and went to Stanton, Mich., where she interviewed the defendant L. C. Palmer, her attorney, who returned that evening with her to the city of Grand Rapids. Complainant met them at the depot, and he was there informed that the matter was entirely in the hands of -Mr. Palmer for settlement. The next morning Mr. Palmer came to the office of Grove & Davis, who were then representing the complainant in some litigation in the courts of that county, and inquired whether or not they had represented the complainant in the divorce proceedings in Grand Haven. Mr. Palmer told Judge Grove certain things that he believed to be true concerning the divorce proceedings. Thereupon Mr. Davis left a telephone call for the complainant to call at their office. Mr. Palmer went to Grand Haven to examine the divorce proceedings, and upon his return called on Grove & Davis, and informed them of the nature of the proceedings in Grand Haven, and of his intention to file a. petition to set aside the divorce. Mr. Dallavo, with, his son Joe, called at the office of Grove & Davis, and. the whole matter was talked over between Messrs. Palmer, Grove, Davis, Dallavo, and his son. Mr. Davis-advised Mr. Dallavo and his son Joe of the serious character of the claims that Mr. Palmer had made with reference to the divorce proceedings, and that if they were true they might constitute the basis of charges of perjury and possibly bigamy. The son Joe thereupon stated that the father desired to avoid publicity and have the affair settled up, and suggested that they have a talk with the mother, who was then at the daughter’s home. The son Joe and Mr. Palmer thereupon went to the place where defendant was staying to talk over the settlement. That evening the
The next day Mr. Palmer continued negotiations with Grove & Davis and Dallavo along the lines suggested by the son Joe, and it was insisted that Mrs. Dallavo should give him a life lease of the property, which at first Mr. Palmer declined to do, but after another interview with Mrs. Dallavo, was agreed upon. The signature of the new wife being necessary to the conveyance, it was arranged that Mr. Dallavo should go to Sand Lake, where his wife was visiting her people, and bring her and her father, who was a justice of the peace, to a conference the next day. They did come the next day, and Judge Grove and Mr. Davis explained to the wife and her father the situation, and what was proposed by way of an adjustment. Upon being told that if the arrangement was carried out the decree of divorce would be enrolled so that her rights as his wife would be established, she and her father advised the settlement and lease, which were duly executed and delivered a few days later. It was also agreed on the part of Dallavo that the property should be relieved from incumbrance. After the settlement had been executed, and before the papers were recorded, Dallavo obtained a loan of $4,000 from a building and loan association, which had no knowledge of the conveyances, and secured it by a mortgage on the Finch property executed by himself and his wife Marie.
It is the claim of the complainant — and he so testified — that during these proceedings he was nervous, excited, and very much worried and scared, and that it was under threats of prosecution for perjury and bigamy that he agreed to deed the Finch property to the defendant; and that he did so only because of these threats that were made against him, and because he was fearful of being arrested.
The learned trial judge who heard the testimony and who saw the witnesses on the witness stand, in determining the question of fact, and speaking of the testimony of John Dallavo, said:
“In regard to that I am convinced that every disputed question of fact must be determined without reference to his testimony. His deceitful conduct toward his former wife, Henrietta Dallavo, his apparent readiness to perjure himself in the divorce suit, and his reckless and unfounded sworn allegations in this bill forbid my placing the slightest credence in his testimony.”
With this conclusion we are in accord. We do not believe that his testimony on disputed questions of fact is entitled to any credence. v It is very apparent from a reading of this record that through all the negotiations with reference to the transfer of property, the complainant had the benefit of the advice of competent and experienced counsel. Judge Grove, a lawyer of unquestioned standing at the bar, testified:
“From the beginning to the end, Mr. Davis talked over the matter with me from time to time, and he in*358 my judgment was unusually cautious and careful trying to protect Mr. Dallavo just as far as he possibly could. I never knew a case where an attorney seemed to be more earnest in his efforts to protect a client than Mr. Davis showed all the way through.”
It appears that even his. attorneys did not advise him to make this settlement, advising him only to exercise his own judgment, based upon a knowledge of the facts. He undoubtedly made the settlement, knowing the consequences of what might follow if he did not make it. But we think that it clearly appears that he made it only after deliberation and after having had the advice of his son Joe, his new wife, and her father.
The legal question as to what constitutes duress has quite recently had the consideration of this court, in the case of Clement v. Mercantile Co., 172 Mich. 243 (137 N.W. 657" court="Mich." date_filed="1912-10-02" href="https://app.midpage.ai/document/clement-v-buckley-mercantile-co-7947168?utm_source=webapp" opinion_id="7947168">137 N. W. 657), and what was. said there by Mr. Justice Steere is clearly applicable here:
“The law does not recognize duress by mere suggestion, advice, or persuasion, especially where the parties are at arm’s length, and represent opposing interests. 9 Cyc. p. 443. * * * The only duress claimed is per minas — by threats and intimidation. To constitute this, it must appear that the party coerced was so intimidated and moved by the threats made as to cease to be a free moral agent, and became so bereft of those qualities of the mind essential to entering into a contract as to be incapacitated to exercise his free will power in that connection. * * * As a rule, duress will not prevail to invalidate a contract entered into with full knowledge of all the facts, with ample time and opportunity for investigation, consideration, consultation, apd reflection. Clement knew the facts in this case, was given ample opportunity, and invited to investigate, and was free to consult with whomsoever he saw fit.”
Likewise in this case, it clearly appears that Dallavo was informed with reference to all the facts concerning the situation which confronted him. He knew
The fact that he comes into a court of equity with unclean hands should not, under the authority of Briggs v. Withey, 24 Mich. 136" court="Mich." date_filed="1871-11-29" href="https://app.midpage.ai/document/briggs-v-withey-6635423?utm_source=webapp" opinion_id="6635423">24 Mich. 136, necessarily deny him the right to relief, but it does not relieve him from the necessity of convincing the court of the fact that the arrangement that he made was one procured by fraud or by duress per minas.
We also agree with the conclusion of the trial judge that the deed signed by the present wife was without legal consideration so far as she was concerned, and that it was proper to preserve to her her dower rights. Clement v. Mercantile Co., supra.
The contract provided the following as consideration moving to Dallavo:
“In consideration of the faithful performance of the agreements and undertakings to be performed by first party, as hereinbefore recited, said second party does hereby undertake to support the minor children of said parties hereto, the issue of the marriage theretofore existing between said parties, and said second party also hereby acknowledge receipt and payment in full of all dues, demands, and claims of every name and nature existing at this date.”
At the time of the settlement there were three minor children, and we think that the agreement in the con
The decree also properly provided that the complainants should pay the mortgage placed by them on the Finch property, and by consent of the parties the deed to the daughter Louise and the one by her to her mother of the farm at Wyman was set aside.
The trial judge made a proper disposition of the case before him, and we therefore affirm his decree, except as to dismissing the bill, with costs to the defendants.