49 Mich. 209 | Mich. | 1882
For many years prior to January 31st, 1880, Lawrence Boylan the decedent owned and resided on ,a parcel of land containing about five acres in the township •of "Wyoming in Kent county. It was worth five or six hun•dred dollars.
His wife died in May, 1879, but he continued his residence on the premises until his own death, which occurred April 20, 1880. He had no children. From his wife’s death until a few weeks before his own one Mary Mullen ikept his house and rendered him valuable service. He had no property except this small place and about $135 of personalty. Mrs. Mullen had a considerable demand against .him for her service and there were some other claims. He was from seventy to seventy-five years of age.
In these circumstances he proceeded at the date first mentioned to dispose of this real property. He executed a warranty deed of it to the defendant. The consideration stated
In June, 1880, complainant was appointed administrator and commissioners were named to pass on any claims-which might be preferred. The record furnished is in-' many particulars vague and imperfect, but we gather froim it that the commissioners rejected the claim of Mrs. Mullen, but allowed one in favor of Lewis Clark for about $15, the-precise sum not being stated. Mrs. Mullen appealed and: complainant refrained from offering resistance to her demand; and late in December, 1881 (the actual time not appearing), the circuit court allowed her claim at $289 and1 taxed her costs at $62. Y5. This judgment remains imfull force. In the course of the present case a collateral attempt has been made to review and impeach it; but as there was-jurisdiction and no fraud is proved against the adjudication-, the result must be considered as binding.
It seems that defendant got possession of decedent’s personalty and that complainant sued him to recover it and-that the cause was compromised by defendant’s paying-$123.23 and his releasing all claims against the estate. In February, 1881, the defendant conveyed the premises-before mentioned to one Jacob H. Carpenter and wife for* $400, of which $100 was paid down and the remainder-secured by mortgage on the place.
The complainant alleging a deficiency of assets and claiming that decedent’^ conveyance to defendant was made with-
1st. The objection that the transfer was of decedent’s homestead and not the subject of a bill of this kind cannot prevail. No such ground is taken by the answers. Moreover, the conveyance was in effect of a future estate and not of a homestead. The transaction in its entirety amounted ■ only to a conveyance of the remainder expectant on the -death of the grantor, and therefore of the estate which would be left after the extinguishment of the homestead. The effect was to exempt the homestead. The estate could •only come into possession on the occurrence of the very ■event -which would end it.
2d. The objection that the compromise of the action ■brought at law to obtain possession of the personal property, -embraced a settlement of the cause of action in this suit, is .entirely without foundation. The facts lend it no countenance whatever.
3d. The evidence sustains the equity of the bill and shows •that the decedent’s intent in deeding to defendant was to •defraud Mrs. Mullen and probably other persons.
4th. The position of complainant that mere general .claims which are not adjudicated by commissioners or the probate court or on appeal can be adjudged in this suit and •converted into demands payable out of the assets which it is ■brought to subject, is not tenable. When the claims are at .large and unsettled it is necessary that they be adjusted and •allowed either by -commissioners or the judge of probate or •on appeal in order to charge an estate with them, and until .-.an estate is charged with them there is no basis for a bill .¡against a decedent’s fraudulent conveyance in order to irecover means to pay them.
5th. No case is presented for setting aside the deed and bringing the premises into the category of assets, because
6th. As between the parties to it the grant made to the-defendant was binding, though voidable by creditors, and. the statute permits recourse against the defendant only so-far as necessary to pay creditors, or in other words, only so far as necessary to make up the real “ deficiency.” And the case shows an adjudicated indebtedness, and an actual “ deficiency ” for an amount probably less than the price for which the defendant sold to Carpenter, namely $400. But the actual “deficiency” is of uncertain amount, and the record contains no data to enable the court to fix it. The-case must therefore go back.