Atterauge v. Christiansen
| Decision Date | 12 April 1882 |
| Citation | 48 Mich. 60,11 N.W. 806 |
| Court | Michigan Supreme Court |
| Parties | ATTERAUGE v. CHRISTIANSEN. |
Where an executrix purchased lands with the funds of the estate and took the title in her own name, with habendum to herself her heirs and assigns, but describing herself as executrix held, that a judgment creditor of such executrix levying upon such lands, and making sale under his execution, acquired no title thereto as against the heirs of the estate. Notice of lis pendens filed in a former partition suit held sufficient to bind parties as to the land in question.
Where a bill in equity is filed by one in possession of lands, to establish and quiet the title thereto in himself, the fact that defendants may claim title through different sources and by different instruments, will not prevent them being put in issue and determined in one proceeding, or render the bill multifarious.
Appeal from Wayne.
Ward & Palmer, for complainants.
George Gartner, Maybury & Conely, and Barber & Rexford, for defendants and appellants.
The bill in this case sets forth that Ignatius J. Atterauge held a leasehold interest, renewable on the first day of July, 1859, and at the end of each five years thereafter, in lot 8, block 3 of the Brush farm, said lot being now designated as lot 1 of subdivision of lots 8, 9, and 10 in block 3, and that he was in possession thereof. That he held an agreement for a parcel of land in Wyandotte designated as lot 6, block 57, and lots 10, 11 and 12 in block 106, and that the full purchase price thereof had not been paid. That about the twenty-seventh of January, 1858, said Ignatius J. Atterauge died testate leaving surviving him Anna E. his widow and five children. That by his will which was duly admitted to probate, his widow Anna E. was named as executrix with Ferdinand E. Dunnebacke as executor, who duly qualified as such. That by his will he gave to his wife, in lieu of dower, for her support and the support and maintenance of his children, the income of all his estate, so far as necessary, the surplus to be invested, and subject to the interest, control and trust given his wife, all his estate he devised and bequeathed to his children share and share alike. That afterwards and on the second day of March, 1858, the said Anna E. waived and renounced in writing the provision made for her, and elected to be endowed of the lands of which her husband died seized, and that she thereupon took upon herself the execution of said will and collected the moneys due and belonging to the estate and the rents thereof, and disposed of and converted into cash a large amount of personal property belonging thereto. That from the money, income and effects of said estate belonging to said children she paid the balance of the purchase price on the Wyandotte property, and on the twenty-ninth day of July, 1859, and twenty-fourth day Of february, 1860, by deeds of conveyance she took the title thereof to herself as executrix of the last will and testament of said Ignatius J. Atterauge deceased, in trust for his heirs and devisees, which deeds were duly recorded on the twenty-fifth day of March, 1861. That after the death of said Ignatius and the appointment of Anna E. as such executrix and before 1860, she caused to be erected on said lot 8 of the Brush farm, a four-story brick building, with the lower story and cellar arranged for a store or place of business, and the upper stories arranged and furnished as a dwelling; that the cost of said building exceeded $8,000, and that she paid the whole amount thereof from the property and money of the estate belonging to said children. That on the first day of May, 1868, she purchased of John T. Meldrum lot 9 on the north side of Congress street on the Antoine Beaubien farm for $3,850--and from the property and money of said estate paid $1,850 of said purchase price, and took a conveyance of said lot to herself as grantee by the name and designation of Anna E. Atterauge, executrix of the last will and testament of Ignatius J. Atterauge deceased, and to his heirs and assigns forever and for their own proper use and benefit. And that she secured the balance of said purchase price by giving her bond and a mortgage on said lot, in which she was designated as executrix, etc., as in the deed to her. That after the purchase thereof she had erected thereon a brick dwelling-house, at an expense of $5,000, and paid the same out of the property and assets of said estate that had come into her hands as executrix, and that it was her intention to take and hold said lot and house as the property of said estate and in trust for said children, and that it was by inadvertence and mistake that such trust was not declared in the conveyance of said lot to her, and that at the time such conveyance was made, all of said children were under 21 years of age and had no knowledge of the form or effect of said conveyance.
Previous to 1879 several of the heirs had conveyed their respective interests in all the above property, and in August, 1875, Henrietta A. Stoll, one of the heirs, mortgaged her interest to Isaac A. Ingersoll, who on foreclosure became the absolute owner thereof on December 4, 1877.
In April, 1874, Ferdinand E. Dunnebacke, who in 1872 had acquired the interest of Ignatius J. one of the children of Ignatius J. deceased, commenced proceedings in the Wayne circuit court in chancery against Anna E. as having a dower interest in the Brush farm lot, and against the other heirs except his grantor, as tenants in common owning four-fifths of the fee in all of said property, making the mortgagees parties, and praying for a partition of the property, and on the same day notice of lis pendens was filed. Personal service was obtained on all of the defendants, some of whom appeared, proofs were taken, and a decree rendered, recognizing the ownership in fee of the heirs in the lands conveyed to the widow Anna E. and that she held them in trust for the heirs. That certain judgments were recovered against Anna E. in one of which Henrietta Stoll was a party defendant, and levies made upon their interest in all of said property. The case in which ...
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