Van Wert v. Chidester

• Decision Date: 26 January 1875
• Citation: 31 Mich. 207
• Court: Michigan Supreme Court
• Parties: Andrew Van Wert v. Sarah Chidester and others. [1]

31 Mich. 207

Andrew Van Wert v. Sarah Chidester and others. ^[1]

Supreme Court of Michigan

January 26, 1875

Heard January 7, 1875

Appeal in Chancery from Kalamazoo Circuit.

Decree modified as to make the taxable costs of all parties a charge against the estate, and in all other respects affirmed.

J. L Hawes, for complainant.

Severens Boudeman & Turner, for defendants.

Cooley J. Campbell, J., and Graves, Ch. J., concurred. Christiancy J., did not sit in this case.

OPINION

Cooley, J.:

The bill in this case was filed for the purpose of establishing an equitable title of the complainant in certain lands in the county of Kalamazoo, the legal title to which was in his father, Adrian Van Wert, at the time of his decease. The defendants constitute, with complainant, all the persons interested in the estate of Adrian Van Wert, being his widow, heirs at law and administrators.

The land in question was purchased from the state, and the original certificate was taken in the name of complainant, but was assigned to the father, as complainant avers, for the purpose of giving to his parents assurance of his intention to fully keep and faithfully perform an agreement he had previously made with them for their comfortable support during their life time, and to secure to them a home, and thereby gratify a childish desire of said Adrian to have the title to said land in his own name. The defendants object that the case made by the bill is one of a parol trust in lands, which is void by the statute.-- Comp. L. 1871, § 4692; while complainant insists, on the other hand, that the transaction, as set out in the bill, was equivalent to a mortgage with a parol defeasance, which would be valid under previous decision in this state.-- Wadsworth v. Loranger, Har. Ch., 114; Emerson v. Atwater, 7 Mich. 12.

The allegations of the bill are not so explicit as they might have been, but we are of opinion that they make out a sufficient case. We cannot say the same of the evidence. To establish an equitable right in lands in opposition to the muniments of title, the parol evidence of the understanding of the parties ought to be very clear and distinct, and should leave us in no doubt regarding the precise terms of the agreement. Such is not the case here. Much of complainant's evidence is inadmissible, because it related to matters which, if true, must have been equally within the knowledge of his father in his life time.--Comp. L. 1871, § 5968; Kimball v. Kimball, 16 Mich. 211. The other evidence upon which he must mainly rely, was that of his mother and his brother David. His mother's testimony was exceedingly vague and unsatisfactory, and David's action relative to a division of the estate was too inconsistent with his testimony, to enable us to feel a reasonable degree of security in relying upon it. We feel compelled, therefore, to deny the relief prayed, though we cannot resist the conviction that there are strong probabilities favoring the equities c...