155 Mich. 331 | Mich. | 1909
This is a suit for partition of lands between complainant and defendant Walter Phillpotts, the defendant Mary Phillpotts being made a party because of her dower interest in the lands in question as widow of Harry Phillpotts. The lands consist of 320 acres in the township of Pinconning, Bay county. The facts necessary to an understanding of the case are these: The complainant on the 6th of June, 1904, obtained a judgment against Richard Phillpotts and others, and on the 25th of March, 1905, complainant caused a levy to be made upon the interest of Richard Phillpotts in and to the property above described, the levy being duly recorded. Richard Phillpotts was one of the two heirs at law of Harry Phillpotts, the defendant Walter Phillpotts being the other heir, and the defendant Mary Phillpotts the widow. On the 4th of April, 1905, after the levy of complainañt had been made and perfected, Richard Phillpotts and wifequitclaimed to the defendant Walter Phillpotts the property above described, together with another 40 acres.
“ Pinconning, April 5, 1904.
“ This is to certify that I have sold all my claim and heirship on my father’s property, owned by him in the township of Pinconning, county of Bay, for the sum of ($2,000) two thousand dollars.
“Richard Phillpotts.”
Complainant had no knowledge of this agreement or receipt previous to the commencement of the present suit. On the trial the proofs took a wide range, the complainant contending, among other things, that if such a transaction as’ that set up in the answer took place in 1904, it was colorable, and was a scheme to defraud the creditors of Richard Phillpotts, and was made during the pendency of the present suit. The court, however, found against complainant’s contention upon this question, and while there is much in the record to cast doubt on the testimony of the witnesses for the defense, we find it unnecessary to negative the case asserted in the answer.
Really the case gets down to this: As between a claimant under the written instrument set up in defendant’s answer and an execution creditor, which is entitled to precedence? The circuit judge determined the case in favor of defendants on the ground that the agreement of April 4, 1904, having been duly carried out, barred Richard Phillpotts from participating in his father’s estate until set aside by some competent court; that the proceedings in the probate court did not affect the title of Walter Phillpotts derived through his father from Richard Phillpotts ; and that, assuming that there was fraud in the transaction, yet as the complainant did not proceed to file its bill within one year from the date of the levy, it would be
It is said in the brief of defendant’s counsel that complainant in this case was an execution purchaser, and was therefore not a bona fide purchaser for value, and not entitled to any notice. This is hardly an accurate statement of the law as it stood prior to the amendment of 1889. It is true that under the earlier decisions of the court, and before that amendment, a certificate of levy was held not to be notice to a subsequent purchaser. But this statute being Act No. 227, Pub. Acts 1889 (3 Comp. Laws, § 9224), amendatory of Act No. 5, Pub. Acts 1875, now provides for the filing of notice of levy with the register of deeds, and further provides that, upon said notice being filed, such levy shall be a lien thereon from the time when such notice shall be deposited. And the lien thus obtained shall from the filing of said notice be valid as against all grantees and mortgagees of whose claims the party interested shall not have actual or constructive notice. As was said in First Nat. Bank of Cooperstown v. State Sav. Bank of Ionia, 130 Mich. 332, this statute scarcely requires construction. The language could not be more plain or unambiguous. The purpose was to change the rule which had previously existed, and to give a levy under an execution the same priority accorded to a conveyance duly recorded. See, also, Gardner v. Mason, 130 Mich. 436, where the rule was again affirmed, and the case of Campbell v. Keys, 130 Mich. 127, which distinguishes between an execution levy and an attachment levy in this regard, pointing out that the attachment
. “ If the oral agreement be considered as valid and binding, then he held the legal title to an undivided one-seventh of the property in trust for the benefit of his brothers and sisters, the other six heirs of Thomas E. Gary. The trust, upon which he thus held the title when the judgment liens were acquired, was a secret trust, undisclosed by anything upon the records, and of which the judgment creditors here concerned had no notice. Inasmuch as they had no notice, that secret trust cannot be enforced as against them. A bona fide purchaser of the legal estate —and the judgment creditors here are to be .regarded as bona fide purchasers — will be protected against the prior equitable title of another, of which he had no notice; and, although an heir, holding the legal title to an interest in property by descent, may so hold it in trust for others, still a third person may acquire the title from him, if such third person has no notice of the trust, and acts in good faith. Robbins v. Moore, 129 Ill. 30. After the death of the original owner, the apparent legal title is in the heir; and the policy of the law, which is to make patent all legal titles to lands, so far as practicable, that strang-' ers may safely purchase, equally requires that the bona fide purchaser from the heir should be protected. * * * If, therefore, the agreement set up in the bill in this case should be enforced, it would lead to the inequitable result of postponing the liens of the judgment creditors to a secret, unrecorded trust, of which they had no notice. A court of equity will not enforce such an agreement as that which is here under consideration, under the circumstances thus indicated.”