181 Mich. 438 | Mich. | 1914
This bill was filed on November 7, 1912, for the purpose of foreclosing two mortgages given by defendant on his farm of 288 acres located in Cass county, Mich., one for $5,000, given directly to complainant, and the other for $2,001.22, given to the Jones Exchange Bank, of Marcellus, Mich., but subsequently assigned to her. Owing to the fact that the principal was not yet due on the latter mortgage, and the.amount of interest in default was small, it was withdrawn from consideration by permission of the court, and on motion of complainant’s solicitor the bill was dismissed as to it without prejudice. Upon the hearing a decree was rendered foreclosing the $5,000 mortgage, given complainant, for the sum of $6,587.12, being found due for principal and interest accrued since said mortgage was given on April 20, 1909.
At the time of these proceedings defendant was mentally incompetent. An answer with cross-bill was filed by Samuel Stevens, his son and general guardian, admitting the' execution of said mortgage, but denying its validity and asserting it was without consideration, alleging that complainant had contracted to, purchase the interests of defendant’s heirs in said farm, had been in possession of and realized profits from the same, praying that said mortgage be declared null and void, and asking affirmative relief by an accounting, decree for specific performance of contract, and an injunction to restrain certain proceedings at law which had been commenced by her.
Defendant and complainant were husband and wife, having been married in the State of New York in
“When I went up there on the place with him, I had to do a little of everything. I had to milk, and I often fed the stock. I had never done that before. It seems I had to learn.”
Two children were born of the marriage, a boy and a girl, respectively 8 and 6 years old when this suit was heard.
Though defendant had a large farm with a full complement of stock, tools, etc., and was apparently operating on a rather large scale, his methods were such that he was not successful financially. His farm was mortgaged and he was in debt when married to com
There are four mortgages upon defendant’s farm, the one for $5,000 to complainant being the third, and the one for $2,001.22 which she holds by assignment being the fourth. Two earlier mortgages aggregate $6,000 principal, with considerable accrued interest.
As his obligations increased and creditors were pressing him, and about the time he gave his wife this third mortgage, defendant conceived the project of retrieving his fortunes by journeying to and locating upon land in the Canadian Northwest. To that end, in May, 1909, he took from his farm and loaded a car with supplies, farming implements, tools, stock, etc., including two spans of horses, and started for Alberta, leaving complainant at home to run the farm with what was left as best she could; the parting though not final test of her loyalty being the requisite money to pay freight on his car to Alberta. Defendant located 320 acres of wild land in Alberta and proceeded to subdue and improve the same, devoting most of his time and all the money he was able to secure to that purpose until 1911. He was back home from time to time and gave directions as to the management of the Cass county farm, but left substantially all the burden of it on complainant, and was constantly importuning her by mail for more money, in an interesting series of letters, freighted with accounts of the
“I suppose you think I never intend to sign your mote and answer your letter, I tell you-I don’t live in Michigan now. * * * It is almost 40 miles to town and the last three weeks it has stormed and blowed so bad "and the most of the time it has been •down to 38 and 40 degrees below zero and for 20 miles there ain’t a house on the road. * * * I told her (complainant) in the fall to go and see you. She wrote me she had been and seen you and fixed it up all right and I supposed it was satisfactory. * * * I am willing to give you a mortgage, but I would like it to run 6 years because I will not get the deed of the last 160 for six years. Then will sell out here or back in Michigan and pay up. * * * I came out here so as to save the home place. * * * If you will draw up or have one drawn up running six years, so whenever I can pay you $300 a year * * * that will give me a chance for my life and I will get the old lady to discharge her mortgage on the farm and take one out here. * * * Now I think between God and man I have agreed to do what is right. If you will send me such a mortgage I will sign it and send it back as quick as I can and if. she won’t do so, then I will come back and you may jump on the farm and take it.”
He was home three times in 1909 and once in the latter part of 1910, remaining during a portion of the
We fully agree with the conclusions of the learned circuit judge that this mortgage represented money loaned by complainant prior to its date and which was never paid, either principal or interest; and that defendant is not in this suit entitled to any accounting in relation to her management of the farm.
The only remaining question urged by defendant is the alleged contract between complainant and defendant’s heirs.
Shortly after defendant’s return home in the fall of 1911, he suffered a stroke of paralysis, as a result of which he became incompetent and sank into a helpless condition both physically and mentally, his mind and memory so impaired that he was incapable of transacting any business or even caring for himself. Complainant was desirous of having him sent to an asylum, but his son Samuel Stevens, who lived in Battle Creek, objected to this course, and being appointed guardian by the probate court took his father home with him, and as guardian proceeded to take charge of his estate. He assumed to have control of, and direct operations upon, the farm during the summer of 1912, though residing in Battle Creek. Complainant continued to live upon the farm as before and participated more or less in what was done there, boarding the hired help without pay and furnishing much of the family supplies, though it appears to have been recognized that he was in authority as guardian. The heavy indebtedness of the estate and unsettled condition of affairs were a general source of anxiety, uncertainty, and dissatisfaction. In the early part of the summer she conferred with the guardian, Samuel Stevens, another stepson named James Stevens, and a son-in-law of her husband named Frank James, as to the debts and difficulties which surrounded the
“It is plain to me also that the complainant, the wife of the defendant, is a woman not versed in the a,ffairs of the business world and has had but very little experience in that respect in former years; that she was ignorant of the law and of her rights in this case. I further find that while she was appointed guardian for her two minor children, the issue of her marriage with the defendant in this case, which children are five and six years years of age, that the proceedings had in the sale of the land in this case did not contemplate or secure to these children the rights which they are entitled to under the statute. I think that the notes which were given and held by Frank James, who by the way is a son-in-law of the defendant, were given without consideration, and that the contract which was therefore to be made and executed and the giving of which these notes were based upon, although not signed or even executed was in fact not in accord with the oral arrangements in either the first or second so-called contract of agreement. * * * Defendants have failed in their cross-bill to maintain any right to compel the performance of this oral contract and agreement.”
While it might be contended with some force under certain circumstances that this contract had progressed to a point of performance which relieved it from the statute of frauds, the facts-in this case fully sustain, in our view, the final conclusion reached by the trial court. None of the heirs of defendant are parties to this suit. His guardian asks for him specific performance of an alleged contract to which he was not a party, to which he did not and could not consent; its purpose being to dispose of prospective interests in his estate before he was dead. Even were it an enforceable contract, it was not made with any party to this suit.
This question is fully discussed, with many authorities cited in the annotations to McCall v. Hampton, 98 Ky. 166 (32 S. W. 406), where reported in 33 L. R. A. 266 (56 Am. St. Rep. 335), and need not be elaborated here.
Under the general rules upon this subject to be drawn from the leading authorities, we conclude the contract under consideration is not enforceable either at law or in equity. The principles applicable here are concisely stated in the syllabus (which is borne out by the text) of McClure v. Raben, 133 Ind. 507 (33 N. E. 275, 36 Am. St. Rep. 556), as follows:
“Where a person conveys his expectant interest in his ancestor’s estate, such contracts being regarded with disfavor by the law, and as against public policy, before such contract can be enforced it must be alleged and proven that there was neither fraud nor oppression, and that the ancestor had knowledge of such contract, and acquiesced therein, and the fact that the ancestor is insane, and incapable of consenting to the contract, constitutes no exception to the rule.”
The decree is affirmed, with costs.