202 Mich. 397 | Mich. | 1918
(after stating the facts). Upon a motion to dismiss in the nature of a demurrer we should apply those rules which have become fixed in the former practice when demurrers were in use. One of the recognized rules of long standing was that a bill would be sustained, as against a general demurrer, when the bill stated any ground for equitable relief, even though imperfectly. Hawkins v. Clermont, 15 Mich. 511; Hoffman v. Ross, 25 Mich. 175; Wilmarth v. Woodcock, 58 Mich. 482; Darrah v. Boyce, 62 Mich. 480; C. H. Little Co. v. Cemetery Ass’n, 135 Mich. 248. If this bill sets up any ground for equitable relief against the moving defendant, or against any property standing in her name, it must be sustained and she must answer.
On behalf of plaintiff it is insisted that under the arrangement for the trade of tne equity in the Balmoral apartment by plaintiff, supposedly with defendant Wagner, for the eight lots, on Jefferson avenue, she was to have title to all of them, and that, having complied with her part of the arrangement by assigning the contract for the apartment property, she became the equitable owner of the eight lots — all of them; that Hart received one of these lots for his share of the fraud perpetrated; that he paid no consideration, and, therefore, held such lot as trustee for her; that when it was used to purchase the Moss avenue property, the Moss avenue property became burdened with the trust; that defendant Julia P. Hart, who took title to the Moss avenue property by survivorship, was not a purchaser for value, and that
Defendant insists that plaintiff has an adequate remedy at law; that the facts constituting fraud must be specifically alleged, and that the facts set up do not make a case for relief in a court of equity for fraud; that one must be able to trace trust funds definitely, and that the trust cannot be impressed upon property in the hands of a bona fide holder; that the prayer of the bill shows a different theory than that now urged by plaintiff, and that the funds are not definitely traceable into the hands of this defendant; and in one of the briefs filed on behalf of defendant there is considerable discussion of homestead rights, rights of the widow to her support during the settlement of the estate, priority of creditors, and what rights are acquired by the widow in lands, held by the entirety.
Without discussing at length many of the minor questions suggested it will suffice to say, that the bill contains a prayer for general relief, and that the statement of facts in the bill, rather than the form of the prayer, determines whether a case for equitable relief is made out; that there is nothing in the bill indicating that any question of homestead is involved; that a widow is not entitled to a homestead or support from money other than that belonging' to her deceased husband ; that under the facts in the bill, many of which we have not considered necessary to state, the case is of such a nature, and the complications in it so many, that it is clearly one for the court of equity.
The'defendant’s counsel is correct in his contention that the facts upon which the claim of fraud is based must be alleged, rather than conclusions. But it is sufficient if the substance of the transaction and the result is alleged. Merrill v. Allen, 38 Mich. 487. We think the facts are sufficiently stated in this bill. While it does not allege that Hart was active with de
Counsel for defendant is also correct in his contention that the party seeking to impress a trust upon property must be able to follow the fund, and that if the property is in the hands of a good faith owner, one who has purchased for full consideration, and without knowledge or notice of the trust, the trust may not be impressed upon it. But this bill does not make out such a case. Hart obtained this equity in the lot without consideration; He had demanded and received his commission from Berman for putting the deal through. He had received his pay for his services. Where the $5,000 received on the Berman mortgage went this record does not disclose. When the equitable title to this lot was deflected from plaintiff to Hart the transaction was without consideration. He used the property equitably belonging to plaintiff and applied it to the amount of $%850 in purchasing the Moss avenue property, taking title to himself and this defendant. When she, as survivor, took title it was likewise without consideration, and when she sold on an executory contract, presumably for part cash, and part on time payments, she then held, either in cash or in an interest in the contract, property equitably belonging to plaintiff, for which she had paid no consideration and to which she had no right, and upon which she had no equitable claim. These are the facts alleged in this bill and for the purposes of this motion must be taken as true. The plaintiff has traced into the hands of this defendant property equitably belonging to her sufficiently to put defendant to answer.
It follows that the decree of the court below must be reversed and the demurrer overruled. Defendant will have the usual time to answer. The plaintiff will recover costs in this court; but the record contains an