62 Mich. 324 | Mich. | 1886
Complainant filed liis bill to remove a •cloud on the title to lands in bis possession for some years, which he originally bought at a probate sale made by a ■guardian. This sale was made in 1873, and the only supposed defect was the failure of the probate court to require ■a special bond, and the failure of the guardian to give one. The sale was confirmed, and in all other respects regular, ■-and for $400, which was all the land was worth.
The purchaser went at once into possession, and cleared and improved it; so that in 1881, when complainant bought under the warranty deed of Edgar A. Gilson, who bought •at the probate sale from Eunice Sherman, grandmother and guardian of the minors, Fanny M. Sherman and Robert P. Sherman, he paid for the land, as improved, $1,200.
The guardian received from Mr. Gilson the purchase price for which she sold it, and put out the entire amount upon -security. After the minors reached their majority they received from their guardian the full amount of the investment, and its avails, and are and have been entirely satisfied •with the sale.
The bill avers that one Walter S. Powers, of Nashville, Michigan, an attorne}7, discovered, in some way, the supposed defect in the guardian’s proceedings, and, with full knowledge that complainant occupied the land as his home-stead, set about a contrivance to get the title for his brother, the defendant; that said Walter,upon some pretext, applied to the heirs to convey another parcel of land in Nashville, ■sold at the same sale to one Truman; and that, in preparing the deed for the Nashville property, he put in that deed a -description of complainant’s land also, without the consent •or intention of the grantors, putting in a consideration of •■$1,500, no part of which was paid, the deed being fraudulent as against the alleged grantors as well as against complainant.
This was done, and the deed recorded in June, 1885, and ■on June 25, 1885, a notice to quit was given in the name of •defendant.
Complainant at once applied to Robert Sherman and his
We think the bill made out a good case for relief. It does-not appear that the complainant’s title, if defective, had been made good by the operation of the statute, but it is one which is covered by a short statute,-and one which the heirs could beyond doubt affirm. This they have done presumptively by the voluntary reception and retention of the purchase money after reaching adult age, and have done expressly by deed.
The doctrine that a right to set aside a conveyance for fraud cannot be assigned has no reference to such a case as this. Had they purposely colluded with defendant to cheat complainant out of his land while keeping the purchase-money, they would have been proper defendants to a bill jointly with defendant. But they have been honest and fair, and have given him the redress he asked without attempting to impede him. Defendant cannot, as a purchaser without value and in bad faith, now object that plaintiff is merely seeking to redress a fraud against them. He is seeking to-redress a palpable fraud against himself, to which they were not conscious parties. If the bill is correct, they never gave-the deed in question as their lawful deed, and it could not be so regarded. But it would be absurd to treat this case as-a purchase by complainant of a naked right to pursue a fraud against other persons. Such a rule cannot prevent his getting relief for fraud against himself.
The case, if the facts are true, is one of gross fraud, and clearly relievable.
The decree must be reversed, with costs, and defendant, must answer within forty days.
