2 Doug. 344 | Mich. | 1846
delivered the opinion of the court.
I do not deem it necessary to consider the question, so fully discussed, in the able and ingenious written argument of the counsel for the appellants, as to whether the title to the real estate which is the subject of controversy between the parties, was, at the time the agreement set out in the bill was entered into, vested in the complainants or defendant. Each claimed to have a valid legal title to the premises. This circumstance constituted the subject of difficulty between the parties. The complainants claimed title by virtue of the sale under the execution set forth in the pleadings; the defendants claim of title rested on the deed from Le Roy and wife to him. It is very clear, that if an action at law had been brought by either party against the other, the rights of one to the exclusion of the other would necessarily have been determined. No court could have sustained the title of either to a portion of the premises; the one or the other would have succeeded to the whole estate. The doubt which manifestly
It is said that the sale under the execution was void; the property not having been sold in distinct parcels. We have had occasion to dicide that when property was put up in distinct parcels, and not sold for want of bidders, the whole might be sold together. The proceeding in the present case may have been irregular, and the defendants in the execution, or perhaps a third person claiming under them might have moved the circuit court to set aside the levy and sale, but it certainly does not become the defendant, after the having entered into a solemn agreement, with a full knowledge of all the circumstances, to set up this irregularity to defeat equitable rights acquired under that agreement. The same remark will apply to all the objections urged against the regularity of the sale. It is apparent from the whole case made by the pleadings and proofs, that the defendant was fully advised of the existence of the impediments which he now urges as a ground of defence, for a long period previous to the making of the agreement set out in the bill. He cannot complain that he was ignorant of any important fact in connection with the levy and sale. The means of knowledge were at hand ; and if he did not avail himself of those means with a view to ascertain his legal rights, it was his only folly, and courts of equity do not sit to extend relief to parties who do not exercise common prudence and diligence in protecting their own interests and rights. It would seem to me highly inequitable and unjust to permit the defendant, after having entered into an agreement with his eyes open, and after that agreement had been ratified by him subsequently, and repeated promises made to fulfil it, to come into a court of equity
The principal ground assumed by counsel in favor of reversing the decree of the chancellor, is, that the agreement is void by the statute of frauds. The agreement was by parol, and unless there have been such acts of part performance, as take the case out of the operation of the statute, the decree below cannot be sustained. The 10th section of the chapter of the Revised Statutes of 1838 which treats of fraudulent conveyances and contracts relating to lands, is as follows: “ Nothing in this chapter contained, shall be construed to abridge the powers of courts of equity to compel the specific performance of agreements, in cases of part performance of such agreements.” Was there, then, a part performance of the agreement set out in the bill, and supported by the proofs. An answer under oath was waived, and by recurring to the positive testimony of Knight, Hunt and McConnell, I think it is shown very conclusively, that possession was taken by the complainants under the agreement, with the knowledge and assent of Terry. At the time the property was divided, Terry was in possession, and it would argue a singular disregard of his own interests to permit Knight to lease the premises and receive the rents and profits, without interposing an objection. His whole conduct can only be reconciled upon the supposition that he was satisfied with the agreement he had made, and that possession was given up pursuant to its terms. Again ; the taxes upon the property were paid by the complain
I discover nothing in the proofs to warrant the belief that any fraud was practiced upon Terry by Knight, or that any was designed. There is nothing in the testimony to indicate that Terry did not possess all the information necessary to put a prudent man on his guard. If he did not possess all the knowledge and sagacity necessary to an understanding of his rights, it was his duty to resort to those who could enlighten him. All the facts from which a knowledge of those rights might have been obtained were accessible to him, and if he did not choose to avail himself of the means of information within his power, and take counsel of those in whom he confided, it is his own folly, but not the fault of the complainants. But it does appear, affirmatively, that all the facts and circumstances in any way material were within his own knowledge, and that he did consult others in respect to the propriety of entering into the agreement.
The authority of the court to direct the husband to procure a release of the dower of his wife may be well doubted. It is a question of much interest, and in respect to which there exists a diversity of opinion. Mr. Justice Story has discussed the subject with great ability; and, after a careful review of the leading cases, came to the conclusion that the authority did not exist. 2 Story’s Eq. Jur. § 731 et seq. Cases are to^ be found, where a specific performance of a covenant entered into by the husband, that his wife shall levy a fine, or execute any other lawful conveyance, to bar her right in his estate, or in her own estate, have been decreed. In the case of Hall v. Hardy, 3 P. Will. 189, Sir Joseph Jekyl said : “ There have been a hundred precedents, where, if the husband, for a valuable consideration, covenants that the wife shall join in a fine, the court have decreed the husband to do it; for that he has undertaken it, and must lie by it, if he does not perform it.” In a note to this case it is said, “that the husband, when he covenants that his wife shall levy a
The decree is affirmed, except that portion which compels the husband to procure a release of the wife’s right of dower.