209 Mich. 613 | Mich. | 1920
When this case was here on motion to dismiss the bill, we held that the bill set up a cause of action for equitable relief. Grund v. First National Bank of Petoskey, 194 Mich. 299. The case has since been heard upon its merits and is now here on appeal from a final decree. By this decree the bill was dismissed’ as to defendant bank and relief was granted against defendant Curtis. In considering a chancery case where the facts are in dispute, this court should, and does, give due weight to the findings of the trial judge. He sees the witnesses, notes their appearance on the stand, and his conclusions are always helpful to the court. But this court hears chancery cases de novo, and is in duty bound to examine and determine the facts as well as the law. If after fully considering the record and giving the findings of the trial judge due weight, we are satisfied that the controlling facts are otherwise than as found by him, it is as much our duty to reverse as though we conclude the
The plaintiff was a,lumberman operating at Walloon lake in Charlevoix county in 1908. He had in view the purchase of a piece of timber land. In conversation with Phil B. Wachtel, who was an insurance agent and real estate dealer, plaintiff learned that Wachtel knew the owners of the land. Plaintiff says, “He told me the French people. He mentioned Roy French as the owner.” Plaintiff requested Wachtel to ascertain the lowest figure the land could be bought for. Later Wachtel informed him the land could be bought for $8,500. Plaintiff then owed the defendant bank three or four thousand dollars. He applied to the bank for a further loan of $3,500 with which to
“Of course, the talk was that the land was being bought from the French people through Phil Wachtel, who was acting for me as representative to get their lowest price and after I had been advised of their lowest price by Mr. Wachtel, I made an arrangement with Mr. Curtis to get the $3,500. I borrowed $3,500 from Mr. Curtis and gave my note and John Grund’s note for $3,750. I gave instructions at that time to*617 Chalmers Curtis and the First National Bank with reference to paying this $3,500 and to whom to pay it. I advised Phil Wachtel to have Roy French send his deed and abstract for this property to the First National Bank and that they would pay them over the money upon receipt of a good title. I also advised Sir. Curtis that this deed was to come from Roy French and on receipt of an abstract showing a good title to pay him -the money — to pay Roy French the money. I had been advised by Mr. Wachtel that Roy French was to send the deed. That was the arrangements I made with the First National Bank and Chalmers Curtis as its representative. Chalmers Curtis agreed to that. He accepted it and understood it that way, I presume. I never heard anything to the contrary. * * *
“In reference to turning over this money, the $3,-500, I told Mr. Curtis that I was getting this land and timber for $3,500, and the deed was coming from Roy A. French, and on receipt of a warranty deed with an abstract, showing a good title, he was to pay the money — $3,500. Mr. Curtis said that he would and that he would take care of it. I certainly expected that he would examine the abstract and pass upon the title for me. He said he would not pay the money out unless he got a good title and abstract; that was along in December. * * *
“In January, 1909, Mr. Curtis told me that he had gotten part of the title in and paid part of the money out. I don’t think I am mistaken about that being January, 1909. We started right off the following month to lumber the piece and we put in about forty acres of the piece that winter. So I don’t see how I could be mistaken on it.”
Defendant Curtis testified as follows:
“That was Mr. Grund’s instruction — when he (Wachtel) brought in the deeds and asked for the money, I was to pay him the money. The deeds were to come in installments. Before the deeds or any of them came, when I and Mr. Grund were talking about it first, his instructions to me were that probably the deeds would come in installments, and I was to pay over such money as he needed for that particular branch.*618 Without an abstract I could not tell what the interest of Mr. Grund was, whether one-third or one-fourth; I relied entirely upon him (Wachtel), as a competent man. I was simply to pay the money when I got the deeds. The title was not to be all cleared up at once. I wouldn’t know that it was to be one deed or twenty —well—I did know that it was to be more than one. I knew that they were to come in installments. Mr. Grund informed me that Mr. Wachtel was looking after it for him; that he had made all his bargain with him. . * * *
“I didn’t know anybody at all in .this transaction besides Phil Wachtel and William Grund. I supposed that Mr. Wachtel was going to do the whole thing. He bought it, or Mr. Wachtel made all the arrangements. My information was that Mr. Wachtel was doing the whole business; he was to get the titles, he was to bring them to me; I was to advance him such sums as would cancel these particular deeds to those heirs, whoever they were. * * *
“I was to deliver the $3,500 as Mr. Wachtel brought in those deeds, as he could acquire them. I was to look .them over and see that they were correct — as to execution — receive them, pay him out the money so he could settle with the heir. Nothing at all was said with reference to my examining the abstracts and passing upon the title, or having them examined. I am in the banking business. I am not a practicing lawyer. I have been admitted to the bar but I never practice except to foreclose a real estate mortgage by advertisement. I do not hold myself out to be a practicing or counseling lawyer. * * *
• “At this time when I made this payment, he (Wachtel) came and said that he had received the final deeds, that he had the final, deeds. I said, ‘Phil, is this the complete wind-up?’ ‘Yes,’ he said. Then I said, ‘You have all the deeds to complete the title?’ He said, ‘Yes,’ and I gave him this check making full payment of $3,500.”
Early in 1915 it developed that the grantor in one of the conveyances to Roy A. French, one Julius Earl French, was a minor when he executed the deed, and that one Molly French claimed a dower right. The
Mr. Wachtel had died before the claims of Julius Earl French and Molly French were made known. Some of his acts in connection with this transaction are subject to severe censure, but as they have no bearing on the question before us, they will not be detailed. He had stood high both at Petoskey and in the State at large, and neither of the parties to this litigation knew of any facts showing that he was not entitled to their entire confidence. That Wachtel was employed by plaintiff in some capacity is admitted. The extent of his employment is in dispute. Plaintiff claims it was limited to ascertaining the price at which the land could be bought. This only involved an inquiry of the real estate agent who had the land for sale or a letter to French at Pittsburgh. Plaintiff admits that Wachtel rendered him a bill of $100 for services and that he paid it. It seems quite improbable that Wachtel would render, or plaintiff pay without protest, such a bill for so slight a service. It seems much more probable that Wachtel’s services for which he was paid this sum included looking after the matter for the plaintiff. That plaintiff asked Wachtel to perform other services after the price had been obtained, his own testimony discloses. Nor does it seem reasonable or probable to us that defendant Curtis assumed and agreed without compensation that the title should be. perfect, that all grantors in the chain of title were of age when they executed the various deeds, that all dower interests were acquired, and that no defects existed in the title. While he had been admitted to the bar, he was not a practicing attorney, and it is undisputed upon this record that the law
Considerable is claimed for the fact that defendant Curtis inserted his own name as grantee in the deeds, the deeds as delivered having left a blank for the name of the grantee to be inserted, and the trial judge seems to have been impressed with this claim. But the testimony clearly establishes that the title was to be taken in the name of Curtis, and he was to hold the lands as security. After the timber had been cut from the land and as plaintiff sold it, defendant executed quitclaim deeds of various parcels to plaintiff and the proceeds of such sales were largely applied on the indebtedness. Plaintiff knew from the first that Curtis had taken title in his own name, and, so far as we are able to discover from this record, never questioned the right of Curtis to take such title in his own name until this litigation arose.
Two opinions were filed by the trial judge. The record does not disclose whether this was occasioned by a reargument of the case or not. In the first one he concluded that defendant Curtis was not liable for the defect of title caused by reason of the minority of