Wallace v. Harris

Decision Date12 October 1875
Citation32 Mich. 380
CourtMichigan Supreme Court
PartiesTherese Wallace v. Susan Harris and others

Heard June 15, 1875; June 16, 1875

Appeal in Chancery from Wayne Circuit.

Complainant recovered her costs in this court, and cause remanded.

D. C Holbrook and S. T. Douglass, for complainant.

William P. Wells and G. V. N. Lothrop, for defendants.

OPINION

Graves, Ch. J.

This is an appeal from a decree of dismissal made on pleadings and proofs.

The material matters in the pleadings are as follows: The bill states that for some years prior to September 8, 1871, Charles B. Harris, now deceased, owned in fee simple the west half of the northwest quarter of section seventeen. in township two south, of range ten east, and that the same was worth ten thousand dollars; that he also owned the southeast quarter of the southwest quarter of section eight in the same township, worth three thousand dollars, and likewise owned other valuable real estate; that he was then, and had been for many years, husband of defendant Susan, but for a long period preceding January 19, 1871, these parties had lived unhappily together, and for a considerable time anterior to the last mentioned date they had resided apart; that during the whole interval he had occupied the first described parcel as the place of his home; that it was improved and provided with a dwelling-house, a barn and suitable out-buildings, and which buildings were situated on a specific twenty acres, and were worth at least two thousand dollars; that Mr. and Mrs. Harris being in such state of disagreement, and actually separated,--she being with relatives,--he, in order to provide support for her and relieve his estate from any claim of dower by her, paid her two hundred dollars and gave his penal bond conditioned to pay her one hundred dollars every six months during her natural life, and at the same time mortgaged said first described parcel to secure such bond; that the bond and mortgage were accepted, and the mortgage placed on record January 19, 1871; that at such date he also conveyed to his son, the defendant Allen T. Harris, the parcel on section eight, with the full concurrence of his wife Susan, and to the end that his son should also pay her an equal sum with that to be paid by himself; that accordingly said Allen T. made his bond and mortgage on the parcel so conveyed to him, to the same effect as the first mentioned bond and mortgage, this last named mortgage being recorded at the same time as the other; that said papers were so made and delivered amicably, and with the advice and assent of the sons and sons-in-law of the parties, and were designed and accepted as a pecuniary provision for said Susan during her natural life, in lieu of dower in the premises, and that the amount secured to her exceeded the value of her dower right in the real estate of said Charles; that nothing has been paid since the two hundred dollars which was paid at the time of the arrangement, and that said Susan continued to live apart from said Charles until his death; that on the 8th of September, 1871, said Charles executed and delivered to complainant, by the name of Therese Kiley, she being then unmarried, a warranty deed, whereby he conveyed to her in fee and delivered to her possession of said first described parcel; that by said deed he covenanted that the premises were free from all encumbrances, that he was well-seized and had good right to convey; that she caused the deed to be recorded, and that on the 18th of September, 1871, or about ten days later, said Charles B. Harris died testate, and by his will disposed of such real and personal estate as remained to him, by devising it to all his children; that the will was admitted to probate in the probate court, but an appeal was taken to the circuit court from the decision of the probate court thereon; that for years before the death of Mr. Harris, complainant had been an inmate of his family, and was so at his decease, and at that time, and on the happening of that event, she was in the exclusive possession and in the sole control of the land so deeded to her as before mentioned; that shortly after such decease the defendant Susan, the widow of said Charles, and his sons and daughters, intruded into the possession, and into the dwelling-house, and compelled complainant to leave, and in fact forcibly expelled her, and seized the possession, and thereafter kept it and continued to hold it.

The bill then charges that defendants insist that her deed is void because it assumed to convey the homestead; and that, if not void as to all, it is so as to the forty acres containing the buildings; that they further insist that the bond and mortgage on the land conveyed to her are valid, and that the mortgagee has full right to collect the money therein provided to be paid; that the defendant Susan, the widow, has dower right and the right to hold possession; and that, in case the deed is held void only as to the homestead part, on account of its including the homestead, then the dower right entitles her to have dower assigned in some portion other than that embraced by the homestead; that said homestead includes forty acres, and that dower must be assigned in one-third of the residue: whereas complainant alleges that the widow is not entitled to retain the mortgage and also have dower in such premises; that she ought to elect one to the exclusion of the other; that no part of the premises constituted a homestead; but, if otherwise, then that no part exceeding in value fifteen hundred dollars can be held, and that the deed cannot be invalidated as to any portion beyond; that if the widow is found to be entitled to dower, she can only be endowed of one-third the value of the whole parcel, and the adjustment must depend on an estimate and appraisal.

It is then alleged that the premises, being in dispute, are allowed to go to waste and are becoming greatly injured, and that the widow, claiming to hold her dower right and her right as mortgagee also, threatens to foreclose and collect the money mentioned in the mortgage; that the rights of all parties cannot be decided until the widow makes her election, and until it is ascertained whether a homestead right exists, and what part and portion of the premises, if any, is required to be set off as a homestead, and what, if any, as dower. It is then further charged that the defendants, or some of them, insist that the deed to complainant was fraudulently obtained and should be set aside, and that the whole of the premises belong to them; that the last will of Mr. Harris is void for various reasons, and that each defendant is entitled to an equal or some other share or part of all of said premises; and complainant alleges that until the same is determined, the rights of all are disputed, and the premises rendered useless.

A sworn answer was waived, and special and general relief prayed. The bill was filed in the winter of 1872.

The defendants answered jointly. They admitted that Charles B. Harris owned the west half of the northwest quarter of seventeen, but denied it was worth ten thousand dollars. They further admitted the west half of the south-west quarter of eight was owned by him, and not merely one half of the lot, and that it was worth six thousand dollars. They admitted his relationship to the defendant Susan, that for some time anterior to January 10th, 1871, the parties had lived unhappily together, but averred such unhappiness was caused by the unkindness and misconduct of Mr. Harris. The answer then says, that at this last named date, and for about two years peceding, Mr. and Mrs. Harris lived apart, and that he resided all the while on the before mentioned portion of seventeen; that such place had been occupied by them as their homestead until the separation, and continued thereafter to be so occupied by him until his death; they admit the condition of the premises to be as set forth in the bill, but allege that the buildings are on the north forty, and deny that they are of the value of two thousand dollars. They further say, that about six years before defendant Susan went away from the abode, her late husband, the said Charles, brought complainant there, and she began to reside in the household as a servant of the family; that not long afterwards the said Charles B. began to treat his said wife Susan unkindly, and continued his ill-treatment and unkindness until she was compelled to go away, and seek refuge and a home with a son-in-law; that such ill-treatment and unkindness consisted in his withholding necessary food from her, and in using violent and abusive language to her, and excluding her from her own and other rooms in the house where she had a right to be, and in neglecting to bestow the necessary care and attention due to one of her age and position in the household; that this continued constantly, and was personally participated in by complainant, and that she aided and abetted said Charles in his misconduct; that after staying with her son-in-law about six months, she, believing it right and proper, and her privilege to have a home in the family mansion, returned to it, and thereupon the abusive treatment was immediately resumed and continued, until at length said Charles inflicted personal violence upon her, and locked her in a room to keep her from communicating with her relatives; that she succeeded in making communication, and being in fear of her life from the violence of her husband and complainant, she again went to her son-in-law, and there staid until just before the death of said Charles.

The defendants then say, that under these circumstances the bonds and mortgages in the bill mentioned were made, and the sum of two hundred dollars paid; but t...

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