98 Mich. 203 | Mich. | 1893
The bill in this ease is filed to set aside a deed made by Nathaniel P. Hollenback to the defendant Maggie Hollenback, and to enforce the specific performance of a contract by which it is alleged that said Nathaniel agreed to convey the land in controversy to the complainant Sarah.
Complainant Sarah and defendants Albert Hollenback and Martha J. Kelley are children of Nathaniel P. Hollenback, now deceased, and defendant. Maggie is his widow. Complainant John is the husband of Sarah. Nathaniel died December 13, 1890, aged about 90 years. He formerly lived in Ypsilanti, where, in 1869, he sold his home for $2,200. He then moved to Detroit, where he made a contract for the purchase of the land now in dispute, on which he paid the entire proceeds realized from the sale in Ypsilanti, leaving $700 still due on the contract for the purchase of the Detroit property. Sarah was then unmarried, and went to Detroit with her father and mother, with whom she remained until her marriage, which ocóurred soon afterwards. After living awhile in Chicago, she and her husband located in Saugatuck, Mich., where he was employed at a salary of $1,200 a year. The claim on the part of the complainants is that in April, 1871, her father
Was the testimony of complainant Sarah competent, under 3 How. - Stat. § 7545, it relating to facts equally within the knowledge of the deceased? Was the contract made? Was it performed by the complainants, so as to take it out of the statute of frauds? These are thé three questions presented by the record.
“We do not think we are authorized to interpolate into the statute any such prohibition in controversies with third persons acting in their own right as purchasers during the life of the deceased, and not taking by any post-mortem estate.”
The statute in existence at the time the case was heard in the circuit court provided “that, when a suit or proceeding is prosecuted or defended by the representative of a deceased person, the opposite party, if examined as a witness on his own behalf, shall not be admitted to testify,” etc. 2 Comp. Laws 1871, § 5968. The law was amended
' The principal evidence relied on to defeat the claim is certain letters written by Sarah after the second marriage of her father, in which it is claimed that she made no
The decree must be reversed, and entered here for the complainants, with the costs of both courts, to be paid out of the estate of Nathaniel P. Hollenback. It was not