153 Mich. 664 | Mich. | 1908
Decedent, Alice S. Hill, and defendant John H. Jacobs, were the owners of certain land and standing timber thereon situated in Ontonagon county-in this State. Said Alice S. Hill owned an undivided three-fourths and said John H. Jacobs owned the remaining undivided one-fourth. Said Alice S. Hill resided in Washington, D. C. Said John H. Jacobs resided in the city of Marquette in this State. By correspondence said Jacobs suggested_to Mrs. Hill that she join him in selling the timber on said land, saying that he had a man who' would buy all of it except the hard wood for $2,500. Mrs. Hill thereafter sent her son, defendant James Marshall Hill, to Marquette to confer with defendant Jacobs. In order that he might have full power to act she executed and delivered to him a warranty deed of her title. After reaching Marquette and conferring with defendant Jacobs, said James Marshall Hill executed a deed conveying the undivided three-fourths of the timber on certain of said lands to the Marquette National Bank and delivered it to said bank. This he did believing that defendant Jacobs was also transferring his interest and that said bank was simply acting as the agent of a third person. Said Jacobs did not in fact transfer his interest, and the title acquired by the Marquette bank was through his agency speedily transferred to his wife. Shortly thereafter the Hills concluded that they had been defrauded. Said James Marshall Hill re-conveyed his interest to his mother, Alice S. Hill, deceased, and defendant Jacobs was notified that the transaction was repudiated on the ground of fraud. In a few days thereafter said Alice S. Hill died testate leaving a will making the complainant her trustee. Subsequently, this suit in equity was instituted praying a re-
“A defrauded party does not owe to the party who defrauds him an obligation to use diligence to discover the fraud.”
It is urged that there is no evidence that Mrs. Hill ever accepted the deed of reconveyance executed by her son James Marshall Hill. We answer this by saying that the law supplies this omission. Her acceptance is presumed. See Kaufman v. State Savings Bank, 151 Mich. 65; Bangs v. Browne, 149 Mich. 478; and Thatcher v. St. Andrew’s Church, 37 Mich. 264.
It is urged as Mrs. Jacobs died before this suit was tried that the testimony of James Marshall Hill was incompetent under that provision of section 10212, 3 Comp. Laws, as amended by Act No. 30 of the Public Acts of 1903, reading as follows:
“ No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died, shall be a competent witness in any suit involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract against the legal representatives or heirs of such decedent, unless he shall be called by such heirs or legal representatives.”
We do not feel called upon in this case to determine whether this provision rendered incompetent the testimony of James Marshall Hill. That objection was not made in
We do not consider 'other objections made in the supplemental brief and not made in the original brief.
The decree is affirmed.