112 Mich. 334 | Mich. | 1897
The bill in this case is filed to foreclose a mortgage made by William Watson to Thomas W. Cor-by, March 31, 1879. Mr. Watson purchased the land covered by this mortgage, paying $350 towards the purchase price, and giving the mortgage in controversy upon the land to secure the payment of $600, the balance due. Four months after giving the mortgage, and on July 38, 1879, Watson died, leaving five children and a widow, Caroline Watson, who married the complainant on the 3d day of April, 1880. Complainant, with his wife, took
After William Watson died, no proceedings were had in the probate court relating to his estate until February 26, 1887, when his daughter, Mary M. Dubay, filed a petition in the probate court for the appointment of an administrator, andón March 26,1887, David Trombly was appointed, and an inventory was then attempted to be made of the estate left by the deceased. That inventory shows that there were 14 acres of land valued at $1,400; 13 acres valued at $2,500; horses, cattle, and other live stock valued at $316; wagons and harnesses, $60; farming implements, $46.50; wood, $310.50; corn, oats, hay, and straw, $224; potatoes and beans, $44. The administrator says of this inventory, in a certificate annexed thereto:
“The above items of personal property are from the valuations given me by Mrs. Caroline Finley, widow of said William Watson, and are the amounts admitted to have been received by said widow after the payments of all expenses of harvesting and marketing said property; all of said property having been converted by said widow, and none of it having come into my hands.”
It is claimed by the defendants that, at the time the mortgage was assigned by Mary E. Barnard to Caroline Finley, the same was paid put of personal property left by William Watson at his death. The defendants set up, as another defense, that on the 28th day of May, 1887, the probate court for Wayne county appointed Richard Lamb and Christopher Damitio commissioners on claims in the estate of William Watson, deceased; that the commissioners had meetings as prescribed by law, the last being in November, 1887, and Caroline Finley and George
The principal argument made in this court by defendants’ counsel is upon the last claim set forth; and it is contended that the commissioners on claims acted judicially in denying this claimed mortgage and note, and that the order made by the commissioners, not being appealed from, is res adjudicata. Upon the other hand, it is contended by counsel for the complainant that the note and mortgage were never paid out of the estate of William Watson, deceased, and that they were never presented to the commissioners for the purpose of allowance as a claim against the decedent’s estate, and were never passed upon by the commissioners, and that, if they were ever presented, they were withdrawn from the commissioners’ consideration, and not passed upon. The testimony was taken in open court, and a decree entered finding that the note and mortgage had never been paid, and awarding foreclosure. On the hearing the defendants called the two commissioners on claims, and they both testified that the note given with this mortgage was presented by Caroline Finley to them for allowance; that they heard testimony upon it, and disallowed it,—one of the commissioners stating that it was disallowed because Mrs. Finley testified that she had bought it with personal property
It follows that the decree of the court below must be reversed, the bill dismissed, and a decree entered here directing the discharge of the mortgage, with costs of both courts in favor of defendants.