264 N.W. 842 | Mich. | 1936
This is a bill for an accounting filed by plaintiff, aged 40 and an only child, against his father, aged 82 and a widower, as to moneys paid for the remodeling of defendant's home into a three-family apartment, together with additional moneys paid for maintenance, repairs, taxes and upkeep of the premises, as well as for necessaries furnished both the father and mother, plaintiff claiming an equitable lien upon the lands and premises described therein.
The home in which the parties resided for many years was purchased by defendant in 1906 and title was held jointly by the father and mother until the latter's death in 1926. According to plaintiff, the oral agreement upon which his claim is based was made in 1925 and renewed in 1928, after the mother's death. Defendant admits that practically all the funds were provided by plaintiff, but he denies the existence of an agreement, oral or otherwise. He makes no explanation of the unusual transaction except that plaintiff and his wife were to live in part of the premises and he expected to have a good home *404 with them. Disagreements between the two families living under the one roof resulted in defendant leaving the home and plaintiff filing the bill.
The unsatisfactory record consists of the usual broad claims and strenuous denials, seasoned with charges and counter-charges that have no hearing on the real issue. During the period covered by the testimony, no records were kept by either party covering either expenditures made or rentals received, nor are there any writings bearing on the claimed agreement that the son was to pay the expenses of remodeling, the general upkeep and maintenance of the premises, and provide a home for the father until his death when the subject-matter of the controversy was to become the property of the son.
The trial judge found that the son had expended $9,640 and received rentals of $4,320; he then charged plaintiff $418 for the rental value of his apartment; $950 for cash received from either the father or mother or the proceeds of assurance, and deducted $704 for moneys withdrawn from the father's bank account, determining the balance in plaintiff's favor to be $3,248. All items of maintenance and upkeep while the parties were living together as members of the same household were properly denied. In the absence of an agreement to pay, the presumption is that gratuitous services are rendered by a son in boarding and caring for his father and in maintaining the home. Allen v. Allen,
The decree entered below provides that plaintiff have an equitable lien to secure the sum of $3,248, payable, however, at defendant's death, but that defendant have possession, occupancy and control of the premises subject to the lien and that plaintiff surrender possession upon demand by defendant. This *405
would be a rather satisfactory settlement of an unfortunate and disagreeable situation if it were supported by sufficient proofs. In Osgood v. Osgood,
We indicated in Cheff v. Haan,
"In all cases the person seeking to establish the lien must show that in equity, in good conscience, he is entitled to the lien claimed."
The proofs should be satisfactory and not leave the result to conjecture or guess. We are neither satisfied nor convinced by plaintiff's testimony. He did not sustain the burden of proof. We find no justification, under the evidence in this case, for fastening an equitable lien upon the property of defendant.
The bill is dismissed, with costs of both courts to appellant.
NORTH, C.J., and FEAD, WIEST, BUTZEL, EDWARD M. SHARPE, and POTTER, JJ., concurred.
The late Justice NELSON SHARPE took no part in this decision. *406
