29 Mich. 289 | Mich. | 1874
The complainants, Emily Damouth and Lester Stimpson, are children, and the complainant, Clarence Geer, is a grandchild of Leonard Stimpson, who died in February, 1858, in the county of Barry, and they are the only heirs at law of said Leonard Stimpson, -except William J. Stimpson, an infant, who is made a defendant in this suit. They allege in their bill of complaint, that Leonard Stimpson, at the time of his death, was the owner of a parcel of land in the county of Barry, described as the southeast quarter of the southwest quarter of section ten, in township four north, of range ten west, and that he held a certificate of purchase from the state of Michigan for a certain other parcel on section sixteen, which is also described in the bill; that he was also the owner of a considerable amount of personal property; that at his decease he left a widow, Mary Stimpson, now Mary Klock, who is made defendant, and that said Mary, with intent to defraud his heirs, caused said certificate of purchase from the state to be surrendered,
This bill was demurred to, but the demurrer being overruled, all the defendants except William J. Stimpson allowed it to be taken as confessed by them. William J. Stimpson, being an infant, answered by guardian ad litem, as will be hereafter stated, and a stipulation was then entered into between the solicitors for the complainant and for the several defendants, that the testimony might be taken before William L. Cobb, a justice of the peace, commencing January 21, 1873, and continuing from day to day until the same was completed. The usual order to take proofs in sixty days had been entered December 6, 1872. By an order of court made February 4, 1873, the time was extended sixty days, and this time having expired, complainants entered an order of course, April 5, 1873, closing the proofs, and the evidence taken by justice Cobb was then returned and filed in the court. It has been urged in this court that the proofs could not regularly have been closed by a common order under the rules, because, by the stipulation between the parties for taking them before the justice, the case was taken entirely out of the rules; but the mere agreement to substitute another officer for the commissioner could have no such effect, and if the stipulation that the taking of testimony commencing on a certain day should continue from day to day until completed could be understood as an indefinite extension of time for the purpose, it
Of the evidence taken in the cause it will be sufficient to say that it establishes the fact that the defendants Mary Klock (then Stimpson) and Charles McQueen did obtain from the probate court of Barry county letters of administration on the estate of said Leonard Stimpson; that these letters were void for want of publication of notice of the application therefor required by the statute; that nevertheless they proceeded to administer, and creditors were cited to prove their claims, and did prove them and obtained payment; that said Mary and Charles also, under such appointment, obtained possession of the personal property belonging to said estate and disposed of the same; that they assumed to sell said lot on section twelve at administration sale, and said Mary became the purchaser; that said Mary also obtained from the state a patent to said lot on section sixteen in her own name, though the equitable right was in her husband. Any further facts regarded as material will be stated further on.
The court below decreed the complainants and the defendant William J. Stimpson to be each seized in fee simple as heirs at'law of Leonard Stimpson of the one undivided fourth part of the several parcels of land described in the bill, subject to the right of dower of the defendant Mary Klock as his widow, and directed a reference to a commissioner. to ascertain and report whether such lands could be partitioned between the parties entitled without material injury to their respective interests, or whether it would be more advantageous to them that a sale be made. The decree also directed an account to be taken of the personal property belonging to the estate of said Leonard Stimpson, and which had been received by the defendants Mary Stimpson, now Klock, and Charles McQueen, and appropriated by them, and also of the rents and profits of the real estate, and directed that in the taking of such account the commissioner should be guided by the proofs already taken and
The defendants insist that the bill presents no case for equitable relief; that it is good neither as a bill for partition, nor for an account, nor to remove a cloud upon the title; that it sets up no sufficient facts to defeat the adverse claims of the defendants to the lands, and if it did, the remedy at law would be adequate; that the jurisdiction in the probate court is ample, and indeed exclusive so far as the personalty is concerned, and that the heirs at law bould only reach that through an administration on the estate of their ancestor. They also insist that the bill is multifarious.
The bill is inartificially drawn, but it shows the complainants to be entitled to some x’elief. The frauds of the defendants Mary Klock and Charles McQueen have cast doubts upon their title which the heirs have a x’ight to have x-emoved, and the remedy in equity is more complete for this purpose than any which could be had at law. And there is no sufficient reason why, with these doubts removed, the court should not decree a partition between the respective heirs as prayed.
The court, however, has erred somewhat in its rulings upon the rights of the parties. The defendant Mary Klock, it has been seen, had a title to the lot on section sixteen which was apparently good of record, and which would protect subsequent grantees and mortgagees who were ignorant of her fraud in obtaining the patent. The defendant Bogue holds a mortgage given by her, and the bill contains no allegations to invalidate it. The bill consequently should have been dismissed as to him. It also appears that Mary Klock once conveyed away the title, and though it has been reconveyed to her, one of the deeds in the chain of conveyance is from the complainant Lester
The other heirs, having given no conveyance of this parcel, or any part thereof, are not thus estopped.
The decree must be so modified as to declare the defendant Mary Klock to be seized in fee of an undivided one-fourth in this parcel, under the conveyance from the complainant Lester. As to the lands on section ten we discover no error in the decree, except as to the lands conveyed to Sophia Chase by two of the complainants, and in respect to which, of course, they can set up no further claim.
It is insisted that the bill is defective so far as the defendants George W. Warner, James Y. Wilson and Morgan Curtis are concerned, because it fails to set out the respective interests claimed by them in the lot on section twelve, and to indicate the grounds upon which their claims are supposed to be invalid. If the bill alleged that these parties claimed under the defendant Mary Klock, it would be unnecessary to do more than to show that her title was void for defects apparent upon its face, because if that failed, theirs must fail also. But with every disposition to 'put the most favorable construction upon the allegations of the bill, we cannot find that it so asserts. It charges that the interests or liens of these defendants have been acquired since the death of Leonard Stimpson, and are fraudulent and void as against his heirs, but it does not show that these parties claim through Mary Klock, nor does it set up any distinct facts as invalidating the rights they assert, upon which they could take issue. The bill, therefore, should have been dismissed as to these defendants also.
The court, we think, was right in ordering an account. So far as the rents and profits of the land were concerned,, this would seem to be ■ unquestionable. It is objected that the account could not be made to cover the personalty, because complainants could derive no title to that, except through an administration. As a general principle this is indisputable. — Morton v. Preston, 18 Mich., 60. But in this
Complaint is made that the decree in directing a reference for an accounting, erroneously restricted the production of witnesses to the complainants and William J. Stimpson, to the exclusion of those who had suffered the bill to be taken as confessed. The decree certainly seems to be open to that construction, and it must be modified so as to leave Mary Klock and Charles McQueen at liberty to produce their evidence.
We deem it our duty to allude to one remarkable fact disclosed by this record, but not alluded to on the argument. The defendant William J. Stimpson is an infant, and his interests are identical with those of the complainants, and adverse to those of Mary Klock and Charles Me-
The-decree of the court below riiust be reversed, and the bill dismissed as to the defendants, Bogue, Wilson, Warner and Curtis, with costs of this court and of the demurrer in the court below. It must also be modified as to the defendant Mary Klock so as to protect any interest she-may have in the lot on section twelve under the conveyance from Lester Stimpson, and as to the lauds conveyed to Sophia Chase, and so as to allow Mary Klock and Charles McQueen to produce witnesses on the accounting. It must be affirmed as to the defendants Charles McQueen and William J. Stimpson, with costs to be paid by McQueen, both on his own behalf, and as guardian of the infant behind whom he has endeavored to defend. And the record must be remitted for further proceedings. No costs, will be allowed either for or against the defendant Mary Klock.