Bassett v. Budlong

• Citation: 77 Mich. 338,43 N.W. 984
• Court: Supreme Court of Michigan
• Decision Date: 01 November 1889
• Parties: BASSETT ET AL. v. BUDLONG ET AL.

43 N.W. 984

77 Mich. 338

BASSETT ET AL. v. BUDLONG ET AL.

Supreme Court of Michigan

November 1, 1889

Error to circuit court, Kent county; WILLIAM E. GROVE, Judge.

Ejectment by Frederick Bassett and Charles Beeman, heirs at law of Annette Budlong, against Aaron Brewer, administrator, and Bertha M. Budlong, devisee, of the will of William Budlong. Judgment for plaintiffs. Defendants bring error.

CHAMPLIN, J.

This is an action of ejectment to recover possession of the E. 1/2 of the S.W. fractional 1/4, and the S.W. 1/4 of the S.W fractional 1/4, of section 18, township 5 N., range 11 W which lands plaintiffs claim in fee. The case was tried before the court without a jury, and upon request of the parties the court made a written finding of facts; from which it appears that on the 15th day of August 1873, one William Budlong was the owner in fee of the premises, and resided thereon with his wife, Annette Budlong. He also at that time owned considerable personal property. He had no children, and on the day aforesaid executed and delivered to his wife, Annette, a quitclaim deed, therein expressed to be "for the love I have for her, as my wife," and for divers other reasons, and for the consideration of $10, by which he purported to convey to his wife, her heirs and assigns, forever, the premises above described. Following the habendum clause of the deed was the following proviso: "Provided, always, and this indenture is made (in all respects) upon these express conditions and reservations, that is to say: First, it is reserved that said party of the second part shall not at any time during the life-time of the said party of the first part, convey to any person or persons, by deed mortgage, or otherwise, the whole or any part of the said premises, as above described, without the written assent of the said party of the first part, on his joining in such conveyance; and, second, it is further reserved that, in case of the decease or death of the said Annette Budlong, party of the second part, at any time before the decease or death of the said William H. Budlong, party of the first part, then, in such case, and upon such decease, the said premises as above described, with all and singular hereditaments and appurtenances thereunto belonging, or in any way appertaining, shall forthwith, upon such decease, revert back unto the said William H. Budlong, of the first part, and to his assigns, forever." As originally prepared, the above deed contained the word "heirs" before the word "assigns" in the last clause, and, upon its being read over to Mr. Budlong, he inquired of the scrivener who would be his heirs, as he and his wife had no children, and was told that his brothers and sisters, nephews and nieces, would be his heirs. He thereupon declared that he did not want any of them to have any of his property, and asked if the instrument could not be made so as not to mention his heirs, and was told by the scrivener that he could get rid of it by erasing the word "heirs," and Budlong directed him to do so, which was done; and the instrument was thereupon executed, delivered, and was afterwards recorded on the 27th day of March, 1874. Both parties continued to reside upon the premises until about March 7, 1886, at which time Annette Budlong died intestate as to said real estate, leaving no parent or child surviving her. Budlong continued thereafter to occupy the premises until June 25, 1886, when he died. Previous to his death, but the time is not stated, he made a last will, devising said lands to Bertha M. Budlong, her heirs, representatives, and assigns, forever, which will was admitted to probate, and the defendant Brewer was appointed administrator with the will annexed, who took possession of the premises, and was holding the same at the commencement of this suit. The plaintiff Bassett is a brother, and plaintiff Beeman is a nephew, of Annette Budlong, and are the only surviving next of kin and heirs at law of her.

It is found as a fact by the circuit judge that, in the spring of 1885, William H. Budlong stated to one Greeman that he did not own a dollar's worth of property there, and that the property was all his wife's. The testimony upon which this finding is based is not returned in the record, and the circumstances and occasion is not stated. One other fact was found by the court, to-wit: That on the same day the deed was executed a bill of sale of all the goods and chattels which William H. Budlong then owned was executed to Annette Budlong. The consideration was stated to be "the natural love and affection which I have and bear to my wife, Annette Budlong, and for and towards the better support and maintenance of her after my decease, and for divers other good causes, and valuable considerations to me thereunto specially moving." The sale was made subject to a proviso therein contained, as follows: "Provided always, and these presents are upon this special trust and confidence, and upon this express condition, that she, the said Annette Budlong, her heirs, executors, and administrators and assigns, shall and do permit and suffer me, the said William H. Budlong, to use, keep, and enjoy all and...