Faxton v. Faxon

Decision Date14 October 1873
Citation28 Mich. 159
CourtMichigan Supreme Court
PartiesTheodore S. Faxton v. Josiah Faxon and others

Heard October 8, 1873

Appeal in Chancery from Branch Circuit.

Foreclosure. Defendants appeal. Decree reversed.

Decree reversed, and the bill dismissed, with costs of this Court and of the circuit court.

E. G Fuller, for complainant

John B Shipman, for defendants.

Campbell J. Christiancy, Ch. J., and Graves, J., Cooley, J. concurred.

OPINION

Campbell J.

Complainant in 1847 and 1849 obtained two mortgages from a half-brother, Ezra T. Faxon (the husband of one, and father of the other defendant), who died intestate in 1850, leaving a family of young children, the oldest being defendant Josiah who was yet a youth. The property was the mortgagor's farm, then of small value.

These mortgages complainant now seeks to foreclose, and the defendants resist the foreclosure, partly relying on lapse of time, and partly on facts insisted on as an equitable estoppel or agreement against their enforcement. The facts show the mortgage was never actually paid, and the equitable defense is the only one requiring attention.

That defense is, in substance, that after Ezra's death, when Josiah was contemplating a removal to another region complainant urged and persuaded him to remain and undertake the care of the land and of the younger children on a promise that the mortgages should never be enforced against them; and that on this urgency Josiah did so, and carried out all that was desired. The testimony shows beyond dispute that complainant made the requests very urgently, and exhibited an extreme desire to have them complied with for the sake of the family; and that Josiah acceded to them. It also shows an unequivocal assurance on various occasions that the securities should be cancelled, and that the family should have the benefit of it. There is some conflict as to whether there was to be an absolute cancellation at any particular time during complainant's life. The weight of evidence is rather that he intended to retain them as long as he should think it best; but nevertheless this was all to be done for the benefit of the family. It is quite plain that his only motive, as then expressed, was to make such use only of the papers as might be necessary to protect the family in their title.

Some time in 1860, or thereabouts, complainant endorsed on each mortgage the word, "cancelled," and signed it with his initials. In 1871 he erased these endorsements, and now prosecutes the securities, which he always retained in his own possession.

This cancellation amounts to nothing beyond showing complainant's intention at that time.

Complainant claims that there was no such specific agreement as should bind him, and also that if there was any, it contemplated action of a testamentary character, and therefore revocable.

If there was an actual agreement, the fact that it contemplated no positive action during life is of no consequence. A will may be revocable, but an agreement for a sufficient consideration to provide by will for a given object, does not differ from any other contract. a It is no uncommon thing to make bargains intended to operate after death. It would only affect the time and manner of the remedy. If this were a bill to compel a cancellation of securities, and such an agreement were relied on to maintain it, the defense might be set up that it was prematurely brought. But if the contract also provided that no steps should ever be taken to enforce it against the family, any step taken in that direction would be a violation of the agreement, and open to remedy as...

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83 cases
  • Jack v. Village of Grangeville
    • United States
    • United States State Supreme Court of Idaho
    • December 19, 1903
    ...22 Minn. 417; Cairncross v. Lorimer, 3 Macq. (H. L. Cas.) 827, 829; Dickerson v. Colgrove, 100 U.S. 578, 582, 25 L.Ed. 618, 620; Faxton v. Faxton, 28 Mich. 159; Kirk v. Hamilton, 102 U.S. 68, 75, 26 L.Ed. 79, Evans v. Snyder, 64 Mo. 516; Zabriskie v. Cleveland etc. R. R. Co., 64 U.S. (23 Ho......
  • Illinois Trust & Savings Bank v. City of Arkansas City, 672
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 14, 1896
    ...F. 874, 881; Pence v. Arbuckle, 22 Minn. 417; Cairncross v. Lorimer, 3 Macq. 827, 829; Dickerson v. Colgrove, 100 U.S. 578, 582; Faxton v. Faxon, 28 Mich. 159; Kirk Hamilton, 102 U.S. 68, 75; Evans v. Snyder, 64 Mo. 516. This principle is as applicable to the transactions of corporations as......
  • McMaster v. New York Life Ins. Co., 1,202.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 11, 1899
    ...which that rule was intended to prevent. White v. Ashton, 51 N.Y. 280; Bigelow, Estop. 437-441; White v. Walker, 31 Ill. 422; Faxton v. Faxon, 28 Mich. 159.' statement of the terms or effect of a written agreement which one has in his hands and is about to make, and which he may read at his......
  • Mercantile-Commerce Bk. & Tr. Co. v. Kieselhorst Co.
    • United States
    • United States State Supreme Court of Missouri
    • July 1, 1942
    ...its injury, thus creating an equitable estoppel against a later demand. 21 C.J. 1142; Jones Store Co. v. Dean, 56 Fed. (2d) 110; Faxton v. Faxon, 28 Mich. 159; Greer v. Bank, 128 Mo. 559; Byrne v. Carson, 70 Mo. App. 126; Van Sant v. Austin, 221 Mo. App. 1096, 295 S.W. 506; Swinney v. Moder......
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