Abbott v. Gregory

• Citation: 39 Mich. 68
• Court: Michigan Supreme Court
• Decision Date: 18 June 1878
• Parties: Thomas H. Abbott v. Augustus Gregory, Francis W. Fifield, and Catharine A. Abbott

39 Mich. 68

Thomas H. Abbott v. Augustus Gregory, Francis W. Fifield, and Catharine A. Abbott

Supreme Court of Michigan

June 18, 1878

Submitted June 6, 1878

Appeal from Van Buren.

Bill to set aside deed and compel conveyance. Complainant, and defendant Catherine A. Abbott appeal.

Decree of the court reversed, and decree rendered in accordance with this opinion, appellees to recover costs in the court below and appellants to recover costs in this court.

Barbour & Rexford and F. A. Baker for appellants. Possession of land is sufficient notice of the occupant's rights (Godfroy v. Disbrow, Walk. Ch., 260; Rood v. Chapin, id., 79; Disbrow v. Jones, Har. Ch., 48; McKee v. Wilcox, 11 Mich. 358; Woodward v. Clark, 15 Mich. 104; Hubbard v. Smith, 2 Mich. 207) even as against his deed, when there are slight circumstances to put one on inquiry, Bennett v. Robinson, 27 Mich. 26; when a defendant has no rights in disputed property as against complainant, he is not in position to object to the granting of relief that will not affect his rights, Birdsong v Birdsong, 2 Head 290.

A. C Baldwin for defendant Fifield.

OPINION

Marston, J.

There are some legal objections set up to the relief sought for in this case which will first be noticed.

First, that the court had no jurisdiction, because it was not alleged in the bill of complaint that the property in dispute was of the value of over $ 100.

It does appear in the bill of complaint that the complainant claimed to be the owner in fee simple of the premises, consisting of three hundred and sixty acres, and that since his conveyance to defendant Gregory the latter had conveyed them to Fifield; and that the consideration as expressed in the deed was $ 15,000. We are of opinion that enough appears to clearly give the court jurisdiction. Church v. Ide, Clarke's Ch. (N. Y.), 494.

Second. That the action is improperly brought in the name of complainant. In support of this it was urged on the argument that complainant by his own showing had parted with all his legal and equitable interest in the land to Gregory upon an oral trust that the latter should hold it for Catherine Abbott, the infant daughter of complainant, and that Catherine was the proper person, if any one, to commence proceedings.

We are of opinion that the position taken by complainant's solicitor is correct. Complainant being of intemperate habits, was desirous of conveying this property to his infant daughter so as to place it out of his reach and prevent its being squandered. He was informed that to do so he must convey to a third person and not directly to his daughter. With this object in view he conveyed to defendant Gregory who he claims was to convey to Catherine Abbott, and that Gregory refuses to convey to Catherine, and has made a conveyance of the property to defendant Fifield. There being no binding agreement between complainant and his daughter under which she could have compelled a conveyance of this property, it being a free gift to her by her father, and the conveyance made to Gregory being for the sole purpose of enabling the latter to convey to Catherine, so that a perfect title might vest in her to the property, we are of opinion, upon complainant's theory, that he remained sufficiently interested in the transaction to enable him to come into court and insist upon the conveyance being made by Gregory in accordance with the agreement, if such an one was made, in order to prevent a frustration of the only object which he had in view in making the conveyance to Gregory. We do not say that Catherine as against Gregory might not have filed a bill for the same purpose, but we see nothing in this case that would prevent her father coming into court as a complainant and insisting upon a performance of the agreement entered into between him and Gregory. The mere fact that performance thereof would enure more particularly and directly to the benefit of another would be no good reason why the party making such agreement could not insist upon its performance. Otherwise the entire consideration as to him might fail, and unless the person for whose direct benefit the conveyance to Gregory was made, would move in the matter, he would be remediless.

We will now consider the facts in this case.

On the 21st day of April, 1875, Gregory by warranty deed conveyed the premises to defendant Fifield. The bill charges that this conveyance was made without consideration and with intent to cheat and defraud complainant and his daughter Catherine, and the bill prays that this conveyance may be decreed of no effect and null and void; that defendant Gregory may be decreed to execute to defendant Catherine a deed of the lands in accordance with the trust reposed in him, and if this relief cannot be granted, that the deed to Gregory may be declared null and void, and for general relief.

Fifield in his answer admits the conveyance to him. He sets up that during the season of 1875 complainant and defendant Gregory were partners doing a general commission business; that he at various times furnished the firm with flour, feed and money; that he wanted security for the advancements then made and afterwards to be made; that for the purpose of securing said indebtedness and any flour, feed or money, afterwards advanced, defendant Gregory executed the deed in question; that said deed was made in good faith, and for the sole purpose of securing and protecting him (Fifield) for any and all indebtedness incurred and to be incurred between him and said firm. And that he caused this deed on the 28th of April, 1875, to be recorded in the record of deeds and also in the record of mortgages of the proper county. He denies that he had any knowledge of the fact that Gregory held these lands in trust, and he offers to release or convey upon payment of the amount due him.

Defendant Gregory in his answer claims that the deed to him was made to enable him to secure persons who should make advances to the firm, and substantially sets up the same facts in reference to the conveyance to Fifield as stated in the answer of the latter.

I am satisfied from the evidence in this case that previous to and at the time the conveyance was made to Gregory, there was not and had not been any agreement or understanding between Abbott and Gregory, that the latter should take and hold this property for the purpose of securing the firm creditors. Gregory's testimony standing alone establishes this fact.

On the other hand I am not satisfied that the conveyance was made in pursuance of an agreement or understanding that Gregory should hold the property in trust for or convey the same to Catherine Abbott, complainant's daughter.

The complainant testifies that he conveyed the premises to Gregory in trust for his child, and that Gregory was to deed to her, and that he thought all the time Gregory had done so, until some time in September or October, 1875, when he first learned that Gregory had conveyed to Fifield to protect the property against certain claims against Gregory, and that Fifield, Gregory said, would convey to Catherine as first agreed upon.

Mrs. Abbott also testifies that the conveyance to Gregory was for Catherine's benefit, but her evidence is far from being clear or distinct upon this point. Indeed her testimony standing alone would and does convey the impression, at least to my mind, that the conveyance was made to protect the property and to prevent complainant from recklessly disposing of and squandering it.

The letters written by Mrs. Abbott shortly after the conveyance to Gregory certainly are inconsistent with the theory of a conveyance to him in trust for the benefit of her daughter.

These letters show that there was no love or affection, and nothing but the most bitter feelings existing between Mr. and Mrs. Abbott, and give very strong support to the testimony of Gregory that complainant had repeatedly refused to convey the premises to either Mrs. Abbott or her daughter, for the reason that the property would then be placed beyond his reach or control; that they did not care for him and would kick him into the street.

The conveyance was made January 13, 1875, and the letters referred to were written in March and June following. Mrs Abbott in her testimony says that after the conveyance she repeatedly spoke to Gregory about conveying to the child, and that the only reason he gave for not doing so was his hurry of business. She says it ran along so until February when complainant and witness were going to leave the city, when she saw Gregory and told him she could not leave until she knew he had fixed the place; that he might die in the meantime and if he didn't fix it they would lose it; that he...