143 Mich. 508 | Mich. | 1906
This cause is before us on error to the circuit court, in a trial upon appeal from probate court, and the allowance of a portion of the claim of the defendants in error.
The record shows that some years ago, David Sexton, being the owner of a parcel of land upon which there was a mortgage, made an agreement with the Flint & Pere Marquette Railroad Company, under which it constructed its railroad across the premises, upon the condition that it should ultimately pay to Sexton such sum as should be awarded by arbitrators upon perfection of the title and conveyance. This sum was afterwards fixed at $150. Soon after the agreement was made the mortgage was foreclosed, and the premises were bid in at the sale by one Barrett. It is claimed by the claimant, Rapley, who asserts a right by assignment from Sexton, that Sexton made an arrangement with McKinney, whereby he provided the money necessary to redeem the land, and the title was transferred to him, as security for repayment by Sexton, and that by the arrangement McKinney’s security was not to extend to the right of way of the Flint & Pere Marquette Railroad Company, and that Sexton was to be entitled to the amount to be paid by the company there
It does not appear that Sexton ever sought to redeem the land from McKinney, but, after McKinney’s death, this claim was filed in probate court, against his estate. Upon the trial at circuit, the record in the chancery cause was received in evidence against objection. The decree in that case provided that a cross-bill, filed by Sexton, in which he 'prayed that McKinney should be required to execute a land contract for the premises to’ Sexton, should be dismissed, leaving him to any action at law that he might have against McKinney and Sexton’s son, Edward, by reason of the facts set up in the cross-bill. It was shown that the amount of $177, paid into court by the railroad company, was paid over to McKinney’s counsel, who applied one-half to payment for his services, and the remainder was applied upon a contract for the sale of the land to Edward Sexton. It was shown that the whole amount fixed by the arbitrators was $150. The court held and charged the jury that David Sexton was entitled to the money, from the railroad company, but that he was
The questions argued are:
1. Were the chancery records admissible^
%. Was the parol agreement between Sexton and McKinney void under the statute of frauds ?
3. Was it without consideration ?
4. Was the claim sufficiently proved to justify the •direction of a verdict ?
The only question of importance in this case, which the records of the chancery case tended to prove, was the ■origin of the fund which came to the bands of McKinney. The oral testimony showed that McKinney’s counsel received the amount under a contract with McKinney to collect this claim against the railroad. Instead, he began an ejectment suit claiming title. Thereupon the railroad company filed a bill against him and Sexton, and enjoined the ejectment case, and compelled specific performance of ■a contract, paying over the agreed consideration to McKinney through the clerk. This record was received for no other purpose as the record shows. It was proper for that purpose. By taking the amount of the decree, it is as though an admission of McKinney had been shown that this identical money was received from the railroad •as compensation for its right of way. The pleadings, to the introduction of which special importance is attached, proved nothing of significance, and, like the decree, are valuable only as explanatory of the central fact. He was a party to that litigation, and we need not inquire whether it raised and adjudicated rights as between him and Sexton for no claim that it did is made, and it is not apparent that it was given any weight by the circuit judge, whose action could as well have been, and probably was, based upon other testimony, which alone could justify it. The answer of Sexton states his claim, but
The rock upon which claimant’s right to this money must rest, is the alleged agreement between Sexton and McKinney that the latter should furnish money for the redemption of the place as a loan to Sexton, and take a conveyance from the purchaser at foreclosure sale, as security, and that this security should be subject to the rights of the railroad, and that the money, when received from the railroad, should be paid to Sexton. If it can be said, that the testimony shows that Sexton had any right of redeifiption at the time that McKinney took his deed from Barrett, so that such deed can be held to .be a mortgage from Sexton to McKinney, under the rule laid down in Malone v. Danforth, 137 Mich. 227, the parol promise that McKinney should convey the land either to Sexton or the railroad company, and pay the price which should be received therefor, to Sexton, was void, under the statute of frauds. The claimant cannot be heard to say that this deed does not cover the half acre; for to do so would be to contradict, not only the express terms of the deed, but the only testimony that we have in the case, viz., that the course taken was for the express purpose of giving McKinney a title to the half acre, which should be superior to the railroad claim. That McKinney was to hold title to this for the benefit of Sexton may be true, but, if so, he was to hold it in trust for Sexton for some purpose, and such trust was void under the statute. ' But it may be said that the oral arrangement, though void, has been carried out, to the extent of converting the half-acre parcel into money, and that such money is a trust fund, held for the benefit of the claimant, under the rule followed in Calder v. Moran, 49 Mich. 14. That a valid trust in personalty may be created by parol, is indisputable, in view of the decision in the case of Calder v. Moran,
‘ ‘ Such an arrangement could not possibly give Sexton any greater right than if he had quitclaimed his interest in the land occupied by the railroad company to McKinney, with the understanding that McKinney would sell the same, and would turn over a part or all of the proceeds to Sexton.”
Counsel for the claimant seek to treat the fund as existing at the time the arrangement was made, upon the theory that the railroad company became indebted to Sexton when the amount was fixed by the arbitrators. The railroad company promised to buy the land upon the perfection of the title, and to pay the sum thereafter to be determined upon conveyance, and went into possession under that arrangement. The amount was fixed, but title could not be made because of the existing mortgage. Hence the money was not due then, and did not become more than a conditional obligation until McKinney conveyed the legal title.
The judgment is reversed, and á new trial ordered.
