98 Mich. 200 | Mich. | 1893
On the 21st of November, 1887, the 'claimant, Timothy Nester, had an equitable interest in a ■¡valuable tract of pine land in Marquette county. One -Jacob Seligman held the title to the lands as security for •money advanced. On this date Seligman conveyed to James G. Ross, at the request of claimant, and Ross and Nester ■•entered into an agreement in writing relating to the transaction, which recited that Ross had advanced to Seligman, ■on Nester’s account, $41,000, and that James Connolly had
Mr. Eoss died on the 1st day of October, 1888. On the 17th of July, 1889, James Connolly was appointed» administrator of his estate in the State of Michigan. Mr. Nester sought to induce Connolly to sell the lands to him or to others, but no steps were taken to do so. Nester thereupon filed his claim against the estate, claiming to recover damages for a breach of the contract with Eoss, -for which he alleges that the estate is liable. It is not claimed that there was any breach of the agreement or default on the part of Eoss during his lifetime, but claimant relies upon a breach by the administrator. The circuit judge directed a verdict in favor of the estate on the ground that the claimant’s remedy is in equity.
We think the circuit judge was right. The conveyance
Counsel for claimant rely upon People v. Wayne Circuit Court, 11 Mich. 404, and Wheeler v. Arnold, 30 Id. 304, as sustaining their right to recover in this case. In People v. Wayne Circuit Court, it was said by Mr. Justice Campbell:
“I am very strongly inclined to the opinion that under our probate system the court of chancery has only jurisdiction in those cases in which an adequate remedy does not exist in the probate court.”
Conceding this, to be a correct exposition of the law, the present is precisely such a case. The only method by which the damage which claimant has sustained by reason of any default of the trustee can be definitely ascertained is by closing up the trust, and this can only be done through the intervention of a court of equity. In Wheeler v. Arnold the claim under consideration was a mere money demand. The Court say:
“If, as claimed by the plaintiff, there were no assets, or none remaining after the debts were paid, then' the liability would be a simple money liability, which could be settled without any legal obstacle in an ordinary action, and no other form of accounting would be required or specially appropriate.”
This case in no way conflicts with the views herein expressed. In ease of a mere money demand, an award of
Judgment will be affirmed, with costs.