56 Mich. 224 | Mich. | 1885
The original bill was filed by Henry O. Lewis to foreclose a mortgage executed by Sharer to Culver and by him assigned to David B. Dennis as collateral security to a note and mortgage given by Culver to Dennis, dated, the 5th day of May, 1875, to secure $1000 four years from
Jonathan E. Culver died testate, seized at the time of his death of certain real estate, and the owner of quite an amount of personal estate. He also owed debts to a considerable amount. Charles E. Culver is his son, Selleck ~W. Sharer his son-in-law, and Mary C. Sharer his daughter. He left a widow, whose name is Clara. By his last will he bequeathed and devised certain real and personal estate to his wife. He also devised to his son, Charles E., real estate of the value of $6200 ; to his daughter, Mary 0., real estate of the value of $3575; to his son-in-law, Selleck W. Sharer, real estate of the value of $1200. He also made 'bequests of his personal property to said Charles E. Culver, to Selleck W. Sharer, and to Hobart W. Sharer. He then bequeathed to Selleck W. Sharer and Charles E. Culver, jointly, all stock on the farm, except one cow and ten sheep, all hogs and horses, all farming tools and implements and machinery, of the value at his death of $2141.25. And he incorporated in his will .the following condition: “ This will is conditioned that Charles E. Culver and Selleck W. Sharer hold-themselves, and the'property made over to them in the above will, liable for all legal claims which may come against said property.” Some time after the death of Jonathan Culver ■Charles E. Culver sold and conveyed to Selleck W. Sharer the land devised to him for the consideration of $6000, no part of which was paid down, but Sharer secured the payment thereof by the execution of the bond arid mortgage in suit, which bond is as follows:
“ Know all men by these presents, that I, Sellick W. Sharer of Matteson, county of Branch and state of Michigan, am held and firmly bound unto Charles E. Culver of the same place, in the penal sum of five thousand dollars, well and truly to be paid to said Culver, his heirs, executors, administrators and assigns, if default be made in the conditions of this bond hereinafter specified, and for which I bind myself, heirs, executors, administrators, and assigns firmly by these presents. Signed with my hand and sealed*227 with my seal, and dated at Colon, St. Joseph county, Michigan, this 18th day of July, A. D. 1873. Now, the conditions of these presents are these: The parties hereto are legatees of the late Jonathan H. Culver, of said Matteson, deceased, and are liable severally, in proportion to the amount of their respective legacies, for all debts and charges, present ■and prospective, against the estate of the said deceased Mr. Culver. And whereas the said Charles E. Culver has this day sold and deeded to the said Sellick W. Sharer his land given and devised to him, the said Charles E., in and by the last will and testament of his father, the said Jonathan H. ■Culver : And now comes the said Sellick W., and hereby promises and binds himself, heirs, &c., to pay the said ■Charles E., his heirs, &c., for the said land as follows, to wit: One thousand dollars within one month of this date, cash ; then next to pay, as of the date of the decree or order of payment of the said debts, by his honor the judge of probate of Branch county, all of the proportion of •said debts that may be the just and equitable share of the said Charles E. Culver, and saving him at all times harmless therefrom, provided it shall not exceed the sum of five thousand dollars, that being the sum left in said Sharer’s hands for said purpose, and for no other, except in case following, to wit: After the final and full determination of the said share of the said Culver’s liability, the amount for him to pay •of the said debts and probable costs -and charges as a said legatee, if there shall be and remain in the hands of the said ■Sharer nny part of the said sum of the said five thousand, dollars, that portion remaining the said Sharer promises to pay to said Culver in four equal annual payments; installments, with interest, commencing on the day of the final adjustment of the amount due of debts, costs and charges as aforesaid, and date of the commencement of the first year, for first installment, same time. A note is given for the said thousand dollars, due in one month. The interest on the said installments is to be at the rate of ten per centum per annum.
Witness the hand and seal of the said Sharer at Colon, St. Joseph county, Michigan, this date above first set forth written.
Sellick W. Sharer. [Seal.]
Signed, sealed, and delivered in presence of Louis A. Leland,
C. SoHELLHOUSE.”
On May 5, 1877, D. B. Dennis, then being the holder of the note and mortgage first mentioned, and also the bond and mortgage executed by Sharer as collateral thereto, received from Sharer the following writing :
“ This is to certify that D. B. Dennis is the holder of a mortgage against Charles E. Culver for one thousand dollars, dated May 5, ’75, and ten per cent, interest. There is due and unpaid on said mortgage eleven hundred dollars, May 5, ’77; and said Dennis also holds my bond and mortgage, given to Charles E. Culver as collateral to his mortgage. I now agree to become responsible to said Dennis for the amount due on Culver mortgage, and to pay the same with annual interest at ten per cent., on or before one year from January 8th, 1878; the same to be endorsed on my bond and mortgage.
S. W. Sharer.”
The Culver mortgage, by its terms, matured May 5, 1879, and he now claims that by the above paper Sharer assumed the mortgage debt, and made arrangements without his knowledge or consent by which the time of payment was extended to January 1, 1879, whereby he is entirely discharged from all liability thereon. But no such consequences follow. Culver was a principal debtor to Dennis, not a surety, and nothing in the certificate prevented him from paying his debt at maturity. There was no agreement to release him, or to extend the time of payment of his debt 'to Dennis. His debt became due on the 5th of May, 1879; and the bill to foreclose the collateral mortgage was filed September 1, 1879.
A more important question is, when do the payments under the bond* given by Sharer to Culver mature, and when do they commence to draw interest % The condition is to pay $1000 within one month from the date. This has been paid. Then next, “ to pay, as of the date of the decree or order of
By the terms of the condition of this bond the amount payable to Culver thereon became fixed and determined when final judgment of the amount of debts, charges, etc., was entered in the probate court. The record shows that the administrator applied to the probate court for a final settlement, an accounting was had, and the account allowed. Culver claimed that the administrator had credited himself with the payment of certain debts which were not proper charges against the estate, and appealed from the order allowing the account, to the circuit court of Branch county. The case was referred to a referee by stipulation, who made a report of his finding of facts and law. Culver filed exceptions, and the report was finally confirmed April 11, 1882. This was the earliest date at which it became determined [what was] the amount of debts and charges against the estate, and the amount of the just proportion which Culver ought justly and equitably to pay. Culver’s share, as fixed by the final determination of the court, was $2233.20, which, taken from the $5000, would leave $2766.80 due Culver under the condition of the bond, payable in four equal annual installments, with interest at ten per cent, from April 11; 1882. Each
Sharer, while insisting that such is the proper construction of the bond, and that such was the final determination of the court as to the amount of debts, and the share of such debts-that he has paid for Culver, as shown in said report, now claims and insists that he is entitled to a further credit and allowance upon said bond of $553.57, being the amount he was obliged to pay to take up and procure to be discharged a certain mortgage held by Eggleston, which Jonathan Culver had executed in his life-time upon the north forty acres-of the eighty acres conveyed to him by warranty deed against encumbrances by Culver, and for which the bond and mortgage were given. He claims he made such payment September 30, 1873, and he charges in his bill of complaint that it was agreed between Culver and himself that such amount should be endorsed upon said mortgage. This Culver denies, and says that at the time the will of Jonathan Culver was made, Sharer himself and several others were present, when Jonathan Culver said to Sharer that the land he had devised to Culver was covered by the Eggleston mortgage ; that he wanted Culver to have it free and clear; and said to-Sharer there was wheat enough in the barn to pay it, and that he wanted Sharer to market the wheat and pay off the Eggleston mortgage, which Sharer promised to do. He produced evidence which tended to corroborate this statement, and considerable testimony was introduced upon the point as to whether Sharer had marketed the wheat as requested, and as to the quantity of wheat on hand.
I think it was the intention of the father that his son, Charles E., should have the land devised, free and clear of the Eggleston mortgage. But I do not think the proofs-show that Sharer marketed and kept the proceeds of wheat sufficient to pay the claim. The claim, however, cannot be-allowed and applied on the bond and mortgage to Culver. Culver denies that there was any such agreement. He says-that nothing was said about it at the time he sold the land to Sharer; and received the bond and mortgage from him,
I have thus far considered the ease upon the construction of the bond and the rights of the parties, as they are affected by the force of that instrument. Guided by the language of that instrument, it has been observed that nothing became due and payable thereon until April 11, 1882. Nothing, therefore, was due, in this view of the case, when the original bill was filed in September, 1879, and upon the theory of the complainant in the cross-bill it would follow that the bill should be dismissed. Kelly v. Bogardus 51 Mich. 522.
But Culver asserts in his answer to the cross-bill that after said bond was executed, and while Ann Williams’ suit was pending (she having been allowed a claim against the estate of about $3600), in the fall of 1876, he and Sharer agreed between themselves that all the property of Jonathan Culver should be liable equally to pay his debts contracted in his life-time; and further agreed that the sum then due from Selleck W. Sharer to said Culvez-, on said bond and mortgage, to be paid according to its conditions, over and above all the liabilities of said estate, and of said Chazdes E. Culver, as heir-at-law and legatee, amounted to the sum of, to wit, $2822, computing the indebtedness claimed by Ann Williazns as indebtedness of said estate at the sum first allowed in probate couid, tp wit, $3600; and agreed also and further that
The proofs show that the Ann Williams claim was origin, ally allowed by the probate judge at $1700; that a rehearing was granted, and new proofs taken, and it was then disallowed by the judge of probate; that she appealed, and her claim was disallowed by the jury, but a judgment was entered in her favor, by stipulation, for the sum of $650, and this sum was certified to the probate court, and was paid by the administrator. This and other litigation cost the estate $260, of which $250 was for the Ann Williams litigation. The proofs further show that at the time it was determined to endeavor to get a rehearing ou the Williams claim, all claims against the estate had been proved before the judge of probate, and if this claim was not disturbed, there was nothing to prevent the order contemplated by the bond being entered by the judge of probate; that the parties to the
“ $2946.52. State of Michigan, JBra/nch County, Register’s Office — ss.: Received on the within mortgage twenty-nine hundred and forty-six dollars and fifty-two cents, July 18, 1873, on a final adjustment of all the claims against the estate of J. EL Culver, deceased. It was found that this mortgage was $2946.52 too large, so this endorsement is made so as to leave just the amount due to Charles E. Culver for his portion of his father’s estate according to a certain bond.”
This receipt, unfortunately, is not dated, and I can find no testimony in the record showing the exact date of the occurrence. Attention is called by the counsel for Sharer to the fact that it is not signed by either party. It was not essential that it should be. It is only testimony taken in connection with the other evidence to show what occurred on that occasion ; more, perhaps, as a memorandum of a disinterested person made on the occasion, and admissible as part of the res gestas.
It will be observed that the endorsement is made as of the date of the bond and mortgage, and if nothing had been said in the bond as to the time when interest should be computed from, it would be a reasonable conclusion that it should be reckoned from its date, inasmuch as the purchaser was in receipt of the use, rents and profits from that date. The bond, however, fixes the time to be when the liabilities against
After this agreement was made, Sharer commenced to make payments on the bond. -These payments, as he states in his answer to the original bill, and as he charges in his cross-bill, were as follows: November 21, 1874, $150; December 16,1874, $105; December 25, 1874, $150 ; December 11, 1875, $101.50. Culver testifies that the first payment was made within a week after the agreement, and endorsement made on the mortgage by Judge Green. This is the nearest the testimony comes to fixing the date of the agreement, and I shall, for the purposes of this case, adopt the 21st of November, 1874, as the date of that agreement. It is worthy of remark, that after two witnesses had testified to this agreement, which was also set up in Culver’s answer to the cross-bill, Mr. Sharer was recalled to the stand and testified toother matters, but gave no testimony upon the subject of this agreement. This agreement was one it was entirely competent for the parties to make. They were of full age, and fully comprehended the facts which formed the
The Williams claim was reopened, and after contest dis-lowed by the probate court. The history of the claim has been stated above. The total amount including attorneys’ charges, was $900. In the agreement it was called $1700. Fifty-two per cent., or $884, must have been included in the amount endorsed on the mortgage. It should have been 52 per cent, of $900, which is $468. The difference must be subtracted from the endorsement, making the true sum to be endorsed $2530.52. The result is that the amount fo’und to be owing upon the bond and mortgage, November 21, 1874, is $2469.48, to be paid in four equal annual installments of $617.37, with interest at the rate of ten per cent, per annum, from that date. There is a discrepancy of fifty dollars between the amounts claimed by Sharer to have been paid by him upon this bond and the receipts produced by him. He holds a receipt dated November 21, 1874, for $200, and this must be allowed as the correct amount. The payments, therefore, to be allowed on the bond and mortgage are as follows : November 21, 1874, $200 ; December 16, 1874, $105; December 25, 1874, $150 ; and December 11, 1875, $101.50.
The title of this bond and mortgage is in the administrator of Henry C. Lewis. No part of the amount decreed to be paid can be decreed to Charles E. Culver in this proceeding. The amount found to be due upon the bond and mort
