47 Mich. 560 | Mich. | 1882
This is a bill in aid of an execution. The complainant is a judgment creditor of Peter Geller, the husband of the defendant, and the purpose of the suit is to reach certain real estate which Peter Geller has conveyed to her.
The facts appear to be that Peter Geller has for many years been a retail dealer in groceries in a small way, and
Before this arrangement was made Peter Geller had failed in health, and his business had become insignificant. He was owing complainant a small sum which accrued after satisfaction of the mortgage, and which was put in judgment in February, 1879, before a justice of the peace. This judgment still remains unpaid, and complainant seeks to enforce it against the Arndt-street lots. He alleges that the conveyance of those lots by Peter Geller to his wife was without consideration and was made for the purpose of defeating the collection of this judgment. On the other hand the defendant claims that the lots were conveyed to her in pursuance of an understanding that she should have them in consideration of her uniting in the deed to complainant and thereby releasing her contingent right of dower in the lots on Gratiot street.
The complainant has deemed it necessary in attempting to make out his case, to call defendant and her husband as witnesses. Their evidence is made the subject of very careful examination and ingenious criticism by the counsel for the complainant, and if the complainant had a prima, fac-ie case without it, possibly we should be compelled to hold that it had not been sufficiently met. But the complainant needed this evidence for his own case, and as affirmative evidence we do not think it aids him.
There would have been nothing unreasonable in such an arrangement as defendant sets up in her answer. The value
It is urged that the consideration for the deed to defendant was grossly inadequate, since she was obtaining for the release of her dower all that the interest of herself and her husband in the Gratiot-street lots was estimated to be worth. This is true; and it might be conclusive if no right to a homestead had existed. That right is not to be ignored when the bona fides of such a transaction is in question. Rosenthal v. Soott 41 Mich. 632. It is also said that the understanding between Peter Geller and his wife, as they testify to it, was void under the statute of frauds, and could not support the subsequent conveyance. Wood v. Savage 2 Doug. (Mich.) 316 is relied upon as authority to that
It was shown in the case that when Geller deeded to defendant she executed a deed of the same lots back to him.. That deed was not delivered, and its execution is explained as being intended as a provision for the contingency of the-wife dying first, in which case the husband was to have the-lots. The fact of its execution has no significance in this, case.
We think complainant failed to make out his case. The-decree must be reversed, and the bill dismissed with costs of.' both courts.