46 Mich. 587 | Mich. | 1881
The material facts stated in the bill are in substance as follows: Margaret Hack being the wife of Jacob Hack obtained a decree of divorce from him in the circuit court for the county of Wayne about the year 1859, and thereafter intermarried with Leopold E. Taufkirch, and lived with him as his wife until her death. That said marriage was however void by reason of a prior and subsisting marriage of said Taufkirch. That said Jacob Hack and Margaret Hack are both dead, the latter having died on the 26th of March, 1870, and that complainants are their sole issue and the only surviving heirs at law as weE of the one as of the other. That on or prior to November 17,1868, the said Margaret was the absolute owner in her own right ■of lots nine and ten in block four of the western addition to the city of Detroit of part of the Cass farm, and that said lots were worth about $10,000. That during the time she lived with Taufkirch he treated her with great brutality and held her under his absolute control. That his cruelty broke her down in body and mind and so completely that in July, 1868, she was attacked with softening of the brain and paralysis, and became wholly insane and incompetent to transact business. That on said 17th of November, 1868,
Such is the case made by the bill. The only matters in the answer which are now material are the denial of incompetency of complainants’ mother, the allegation that the deed to Norris was in pursuance of an arrangement between her and Taufkirch to provide her with a separate living, the averment that whatever equity the complainants may have had originally had been lost by their laches, and that even if they should be held entitled to an accounting it ought not to be carried further back than six years next preceding the filing of the bill and in equity and justice should be confined to the six years next preceding the reference.
The parties went into evidence at great length and on the 19th of November, 1880, the cause was heard on the merits. The court, by a decree of that date, declared that the deed
This decree was not appealed from or otherwise disturbed. Tbe parties acquiesced. It determined all matters except tbe equity reserved and such determination has come to be tbe law of tbe case. December 8, 1880, tbe commis-sioner filed bis report. Tbe parties waived tbe computation •of interest directed by tbe decree and it was not made.
Tbe defendants filed nine exceptions, and on tbe 4-th of •January, 1881, a bearing was bad on the report and exceptions, and tbe court overruled the exceptions and confirmed tbe report except as found inconsistent with tbe final order then made. And tbe case is now before this court by •appeal on the part of tbe defendants from this last order, a •copy of which appears below.
The position taken and adhered to by complainants, and which the court in making the decretal order accepted, is, that the accounting should commence at the date of the conveyance to Norris, a time some sixteen months prior to the acquirement of title by complainants. On the other hand the defendants claimed and still insist that it should begin not further back than six years preceding the reference or at the most six years preceding the filing of the bill. The parties are hence at variance as to which of these periods is the proper one; it being assumed obviously that one of them is so and that the date of Mrs. Hack’s death ought to be excluded. And under these circumstances the court would naturally pause in any event before it would fix on this last-mentioned date as the proper limit. But whatever embarrassment on this score might have arisen, we think
The principle on which complainants rely has been long settled. It was fully explained and variously applied long since. Duke of Bolton v. Deane Prec. in Chy. 516 ; Bennet v. Whitehead 2 P. Wins. 644; Dormer v. Fortescue 3 Atk. 124; Norton v. Frecker 1 Atk. 524; Curtis v. Curtis 2 Brown’s Ch. R. 620. Añd in view of the determination made upon the facts, of which we have decisive proof in the first decree, it is entirety clear that complainants are by these authorities not only entitled to an accounting, but to one going back as far at least as their mother’s death, and accordingly beyond the period contended for by defendants. The necessary meaning of that decree is that Norris got the estate from her by unconscionable means; that Waterman obtained it from him under circumstances exposing the title to the same objections to which it was liable in the hands of
But as we have seen, the accounting was not limited to the beginning of their title. On the contrary it was carried back to the commencement of defendants’ title, being some sixteen months prior to any title in complainants, and this would be .incompetent unless under very unusual circumstances. But we have such circumstances and they apply not only to this consideration but to the argument that the time ought to be arbitrarily confined to six years by analogy to the rule at law. in cases for mesne profits.
The complainants come to be relieved against the two deeds and to obtain the just emoluments of the estate, and they are bound to do equity as a condition of relief, and under this principle, as the court finds, the accounting ought to be extended beyond six years and to the date of defendants’ title.
The defendants are entitled to allowances for improvements and expenditures, and these are found to have been so distributed over the different periods that no just and equitable settlement is .practicable without including the whole interval subsequent to Mrs. Hack’s death. Moreover the matters in regard to allowances to one party and another are so related and so intermingled in point of justice that an accounting on both sides is impracticable on any terms of equity without passing the limit of six years and going-back to the beginning of Norris’ title. And certainly no
This branch of the ease stands on special and peculiar grounds. Neesom v. Clarkson 4 Hare 97, presented a state of things somewhat similar and the right to prolong the .accounting was sustained. "Whether, in case the circumstances were not repugnant, the rule of limitation in respect ho mesne profits in suits at common law would not apply by analogy, we do not inquire. On this part of the case we see mo reason for disturbing the order appealed from.
The second point demands no special comment. We do mot know what objections were made below or what are relied on here against the allowance of interest. The parties saw fit to take the subject away from the commissioner and hence nothing concerning it appears on which to found an •exception, and of course no exception was tendered, and the .sole suggestion made in this court is, that interest should not be allowed. We are not favored with any reason and are mot able to conjecture any. The effect of the first decree was to establish a ground warranting the allowance of inter■est. The rents collected and the value of the arm nal use during such time as the property was not rented, together with interest, seem proper items in fixing the sums chargeable against defendants, considering the nature of their adjudged liability. Vandevoort v. Gould 36 N. Y. 639; New Orleans v. Gaines supra.
The result is that no cause is shown for disturbing the •order and it must be affirmed with costs.
Superior, Court or Detroit — In Qlianm'y.
At a session, of the Superior Court of Detroit, held at the Superior ‘Court room in the city of Detroit, on the fourth day of January, A. D. one thousand eight hundred and eighty-one.
Present, the Hon. J. Logan Chipman, Judge of the Superior Court of Detroit.
Peter Hack, George Hack and Mary Tihbits, complainants, v. Philetus W. Norris and William J. Waterman, defendants.
This cause coming on to he heard at the last September term of said •court, upon pleadings and proofs, and the court upon due consideration
Upon reading the report of said commissioner heretofore filed in this cause, together with the several stipulations thereto attached, and defendants’ exceptions thereto filed in this court, and after listening to the arguments of Charles M. Swift, solicitor for complainants, and John Ward, Esq., solicitor for defendants, it is ordered that the exceptions to the said report be overruled, and that said report be, and the same is, hereby in all things confirmed, except so far as the same may be inconsistent with this decree.
And thereupon it is ordered, adjudged and decreed that said complainants do recover of said defendant, Philetus W. Norris, the several sum and sums which as aforesaid they are entitled to recover, to-wit, the sum of $3040.73; and that said complainant do recover of said William J. Waterman the said several sum and sums which as aforesaid they are entitled to recover, to-wit, the sum of $2012.08; and that said complainants do have execution for all of said sums.
And it is further ordered, adjudged and decreed that said defendants, and all person or persons claiming by, through, or under them or either of them, do yield and deliver up to the said complainants, their several heirs, executors, administrators, representatives and assigns, possession of the premises herein described; and that defendants severally execute-to said complainants, their heirs, executors, administrators, representatives or assigns, deeds of conveyance of the premises above described, releasing ana forever quitclaiming unto said complainants, their heirs, executors, administrators, or assigns, all right, title, interest, claim or demand of said defendants in and to said premises; and it is further ordered, adjudged, and decreed that complainants do recover of said defendants their proper costs of suit to he taxed and to have execution therefor.
J. LOGAN CHIPMAN,
Judge of the Superior Court of Detroit.