34 Mich. 455 | Mich. | 1876
The defendants, being husband and wife, in 1870 were living apart. He had his residence at Decatur, in Van Burén county, and she hers at Fenton, in Genesee county. He was possessed of considerable property, and among other items owned lots three, four, six, seven, and eight in block two of Wakeman’s addition to Fenton. She occupied these lots, living in a dwelling house standing on lot eight, and having with her three daughters, children of the parties. Their son Walter, a lad then about seventeen, stayed with his father at Decatur.
In August of that year a decree of divorce from the bonds of matrimony was granted by the circuit court for the county of Van Burén in chancery, in a suit that had been instituted in her name. No allowance seems to have been made to her in the cause, but about the time of the •decree, or shortly after, he gave to her his personal undertaking in writing for one thousand dollars.
In 1872 she employed complainant, who was a lawyer at Fenton, to take Steps in her behalf to cause the decree of divorce to be set aside and the bill to be dismissed, and he proceeded to do as she desired, and succeeded. This occurred in September of that year. Within a very few days thereafter, and on the 24th of the same month, he filed a bill as her solicitor, in Genesee' county, against her husband, for a divorce from bed and board.. The subpoena to answer was issued on the same day, was made returnable on the 12th of October, and was personally served on the first day of that month. A day or two previous Mrs. Brown had gone to Decatur, and was with her husband at the time of this service. Immediately after such service Brown drew up a warranty deed to her for the five lots before mentioned, and with her went to Mr, Field, a justice, and there exe
It was not acknowledged, but in all other respects was complete.
Immediately, or at least very shortly after this receipt of the deed, Mrs. Brown, accompanied by her son Walter, who went for a visit, returned to Fenton. And on her reaching Fenton, and on the 3d of October, or within a clay or two thereafter, she called on complainant and instructed him to stop the divorce case. He asked her reason for so doing-, and she replied that her husband had deeded these lots to her. Nearly two months later, and on the 30 th of November, Brown filed his answer. No further proceedings were taken in the cause. In about a week after this answer ivas filed, and ,on the 7th of December, complainant sued Mrs. Brown before 'a justice, for his services in these matters. The summons ivas made returnable December lGth, and was personally served on the 7th. She failed to appear at the time the summons was made returnable, and complainant appeared and proceeded to trial at that time in her absence, and obtained judgment against her for one hundred and twenty-five dollars damages and two dollars and fifty cents costs of suit. No attempt was made to disturb the judgment, and no execution was issued by the justice. About ten days after this judgment Mrs. Brown received from her husband, through the mail, a drawn warranty deed of the foregoing lots from her to him, and which she ivas desired to execute and acknowledge and return to him.
She accordingly executed and acknowledged it on the 31st of December, and at some time thereafter sent it to him by mail.
On the 5th of February following, complainant caused a transcript of his judgment to be filed in the circuit court, and procured an execution to be issued thereon. The sheriff levied on lots three, four, six, and seven, block two, of Wake-man’s addition to the village of Fenton, according to the recorded plat thereof, and in due time the same were sold
He makes three objections to the decree:
First, That the judgment against Mrs. Brown was void;
Second, That the sheriff’s deed relied upon does not describe the premises referred to in the bill;
Third, That in the transaction covering the^ giving of the two deeds no fraud was meditated or committed against complainant or any other creditor.
The ground of the first objection is, that the transcript of the justice did not express that he waited one hour for the defendant to appear. The statute does not specify that the justice in case of personal service shall wait at all for the defendant after the arrival of the hour for appearance stated in the summons.
It is the general and very proper course no doubt in such cases to wait a reasonable time for the defendant, and which, by analogy to the time fixed for waiting for the plaintiff, is commonly taken to be an hour. The prevalence of the practice has been owing in some degree most likely to the course in New York. But there the rule is settled by statute, and the justice is required to “wait one hour after the time specified for the return” “unless the .parties shall appear sooner.” This, of course, gives equal indulgence.— 2 B. S. 1830, p. 233, § 46.
Shufelt v. Cramer, 20 J. R., 309, cited by defendant’s counsel, and which was prior to the statute, contained a dictum that the justice was then bound to wait an hour for the parties, or rather a reasonable time. That was not
The only question was, whether, in the absence of any statutory regulation about it, the plaintiff could claim that the non-suit entered after waiting an hour was prematurely entered, and the court decided he could not. Granting, however, but not deciding, that regularly the justice ought to wait an hour for the defendant to appear, still his omission to do so', if shown or assumed, could at most amount to error.
It would not be a fault affecting jurisdiction, and hence not one subject to be taken advantage of collaterally.
The second objection has nothing to support it except that in the sheriff’s deed there were no express words that the lots were in the county of Genesee, and state of Michigan. There is no force in this. The description is not ambiguous on its face. It purports to denote the parcels ■in dispute, and by their proceedings both parties have conceded that it applies to them. There is no ground whatever for saying that the premises pointed out by the deed are not identical with those referred to in the bill and answer and other proceedings. The point is not worthy of serious comment. — See Russell v. Sweezey, 22 Mich., 235, and cases; Noonan v. Lee, 2 Black, 499; Deery v. Cray, 10 Wall., 263; McChesney's Lessee v. Wainright, 5 Ohio (Hammond), 452.
The last objection is more important. Looking at the shifts which were made between these parties and the indications afforded by the open facts, the inference would be that there was a design to screen the land from complainant’ s claim, and if this was not the case and the transaction was fair and honest, it was in Brown’s power to afford
Now, when on the stand as a witness, Brown testified positively that his wife was present at Decatur when the deed of October 2d was prepared, and that he did not send it to her at Fenton, but passed it directly into her hands at Field’s office. Again, the bill against him for a divorce from bed and board insisted upon an ample allowance, and when he came to make answer on the 30th of November, being nearly two months after his deed to his wife, he set up as defense against an allowance, that by the deed in question he had conveyed to his wife the lots described in_ it and now in dispute. Moreover,' this conveyance is there a represented as made by way of separate provision and in addition to the note, and there is no hint that it wras
His personal explanations, when compared with each other and with conceded facts, do not conciliate confidence, and the circumstance that letters between himself and wife, and which he gives reason to suppose contained material evidence, were destroyed or suppressed, and his assumed inability to recollect any of the contents, or even the substance, must necessarily weigh against Mm.
He called his son and one of his daughters, but their testimony was vague and indecisive.
There is nothing to make it probable that they were in a situation to know any thing concerning the real cause for the return of the first deed, and for the conveyance by their mother.
Mrs. Brown, however, must have had full knowledge, and Field most likely knew something, and yet he called neither of these persons. They were competent, but no reason is even insinuated for not producing them. The inference is forced upon the mind that the omission was not an inadvertence, but was designed, and that the ground of their not being called was an understanding that the state of facts to which they could depose, and would undoubtedly reveal, would be detrimental to the claim of good faith set up by Brown, and sought to bo made out by his testimony and the recollection of his son and daughter of remarks made in their presence by the father and mother. On the whole, the scheme of the defense as drawn in the answer, and the course of the defense and the facts closely connected with it, the situation and relations of the parties, the contradictory accounts, the destruction of letters, the
