Blair v. Harris
| Decision Date | 14 June 1889 |
| Citation | 42 N.W. 790,75 Mich. 167 |
| Court | Michigan Supreme Court |
| Parties | BLAIR v. HARRIS ET AL., (two cases.) |
Appeals from circuit court, Ottawa county; DICKERMAN, Judge.
The bills in these cases are filed to foreclose two certain indentures of mortgages. The two cases were heard as one in this court, and the rights of all the parties are so connected that they may be disposed of together. The bills alleged substantially that Myron Harris, now deceased, in his life-time, and on the 27th day of September 1858, made and delivered his promissory note to Francis Alvord, dated October 11, 1858, for $1,000, payable one year after date, with interest at 10 per cent., and to secure the payment thereof made and delivered to him an indenture of mortgage of even date upon the N.E. 1/4 of section 22 township 7 N., range 13 W., township of Talmadge, Ottawa county, containing 160 acres of land. The execution of this mortgage was duly acknowledged on that date, and on the same day was recorded. That Francis Alvord was a resident of Onandaga county, N. Y., and departed this life there on February 10, 1885, and his son, Charles G. Alvord, having been appointed administrator of his father's estate in that county on January 3, 1885, presented a petition for the appointment of the complainant as administrator of said estate to the probate court for Ottawa county, this state and the appointment of complainant was duly made. That on September 1, 1880, Myron Harris, who was a resident of Ottawa county, departed this life, leaving his last will and testament, which has been duly probated in said county of Ottawa. That by said will Myron Harris nominated and appointed as executors thereof and as trustees thereunder his wife, Miriam Harris, Frank L. Carpenter, and Israel V. Harris. That Miriam Harris departed this life September 13, 1880, never having qualified or acted as trustee under said will. That Frank L. Carpenter never qualified as executor; and that Israel V. Harris duly qualified as executor thereof, and that letters testamentary were duly issued to him by the probate court of Ottawa county; and that Frank L. Carpenter and Israel V Harris as the surviving trustees thereunder. That on February 23, 1870, Myron Harris paid upon said mortgage the sum of $1,706. That no other payments have ever been made thereon for either principal or interest, and that there now remains due upon said note and mortgage the sum of $1,082.82. This bill further charges that the Stilwell & Bierce Manufacturing Company, Rollin H. Pelton, and Israel V Harris, in his own right and as trustee and executor, and Frank L. Carpenter as trustee, have or claim to have rights and interest in said premises as subsequent purchasers or incumbrancers or otherwise, and that the defendants Myra Harris, Lucy C. Harris, and L. Victoria Harris, who were subsequently made parties defendant to the bill upon the death of Israel V. Harris, and who departed this life after the bill was filed, are the children and heirs at law of said Israel V. Harris, who had acquired interest in the property subsequent to the giving of the mortgages. The bill in the second case charges that on February 23, 1870, Myron Harris, now deceased, and Israel V. Harris, being indebted to said Francis Alvord, made, executed, and delivered to him a certain other indenture of mortgage for the consideration of $1,456, and by said mortgage granted and conveyed to said Alvord the N.E. 1/4 of section 27, township 7 N., range 13 W., township of Talmadge, Ottawa county, Mich. That said mortgage was duly acknowledged and recorded in the office of the register of deeds of Ottawa county, and that there remains due and unpaid thereon the sum of $2,983.10. This bill also sets out the death of Francis Alvord, the appointment of complainant as administrator, etc., the death of Myron and Miriam Harris, the making of the will by Myron Harris appointing the above-named parties as executors and trustees thereunder, and that Israel V. Harris qualified as such executor. That Myra Harris, Lucy C. Harris, L. Victoria Harris, as well as the Stilwell & Bierce Manufacturing Company, and Israel V. Harris, and Frank L. Carpenter have or claim to have rights and interest in these premises as subsequent purchasers or incumbrancers or otherwise. These two bills were filed on the same day, and such proceedings were had that jurisdiction was had by the court of the person of all the defendants. The defendants Myra Harris, Lucy C. Harris, and L. Victoria Harris are infants, and appeared by guardian ad litem duly appointed. Frank L. Carpenter also appeared and answered the bill in each cause. No contention is made by these answers of Frank L. Carpenter of the making and delivering of these mortgages, though their execution is not admitted.
The claim in the answer is, as to the first-mentioned mortgage, that no payment was ever made thereon of any amount, and that, if said note and mortgage were ever valid and subsisting contracts, the same have not been such within 15 years immediately prior to the death of Myron Harris, and within that time have never been considered by the said Myron Harris, and Francis Alvord as valid and subsisting contracts, but, on the contrary, the said note and mortgage are stale, dead claims, having no basis in equity, and all right of action thereon is and has long since been barred by the statute of limitations, and that the infant children of Israel V. Harris, viz., Myra Harris, Lucy C. Harris, and L. Victoria Harris, have the beneficial interest in said lands. By the answer of Frank L. Carpenter to the second bill it is denied that there is now due upon the second mortgage the sum of $2,983.10 or that any sum whatever is due thereon from the estate of Myron Harris, or that said mortgage is a valid lien upon the premises described therein, and that, if said mortgage ever had any validity as to said Myron Harris or his estate, all right of action upon the same is barred by the statute of limitations. The answer also sets out the interest of these minor children of Israel V. Harris in these premises. Testimony was taken before a circuit court commissioner in these causes, and on the hearing the court found due and unpaid upon the first-mentioned mortgage the sum of $1,200, and that the same is a valid and subsisting lien upon the premises therein described. The court also found due and unpaid upon the second mortgage the sum of $2,200, and that it is a valid and subsisting lien upon the premises therein described, and decree was duly made in each cause ordering a sale of the premises for the payment of such sums and costs. From this decree the defendant Frank L. Carpenter appeals.
It appears that the defendant Israel V. Harris was called as a witness for the complainant on November 17, 1885, and testified to the genuineness of the note and mortgages first given by Myron Harris. The witness was then shown the second mortgage, dated February 23, 1870, given for $1,456, and testified that the signatures thereto were the genuine signatures of Myron Harris and himself, and that said mortgage was given for the interest on the first mortgage and that there was never any interest paid on the first mortgage until the second mortgage was given, and that no interest has ever been paid upon either of the mortgages since the second mortgage was given, and that at the time the second mortgage was given there was no cash paid, and no other payments have been made upon these mortgages. On his cross-examination the witness testified substantially that he and his brother, Myron Harris, were engaged together in the lumber business in Talmadge for 30 years, and that he had an intimate knowledge of Myron's financial circumstances. That he had no knowledge of Myron's receiving any money on the first mortgage; and at that time Myron was more or less pressed with debts. That this mortgage and note were in his (witness') handwriting, were made at Talmadge, and mailed to Alvord at his home in New York. That Alvord and Myron married sisters. On the date the second mortgage was given-February 23, 1870-an indorsement appears upon the first mortgage of $1,706, made, as this witness says, in the handwriting of Francis Alvord, and that Myron received no money from Alvord at that time, and was hard up, and pressed with debts. That the second mortgage was drawn in Myron's handwriting, at Talmadge, and while Alvord was on a visit there; and that it is his recollection that when this second mortgage was given it paid up all the back interest on the first mortgage. The complainant then gave in evidence the mortgages and note with the above-mentioned indorsement upon the first mortgage. It appears that the case here rested until July 29, 1886, when Israel V. Harris was again examined before the same commissioner, a stenographer being called in to take the testimony. A stipulation appears in the record by which the solicitors for the respective parties appear to have agreed to the taking of such testimony. Mr. Harris was examined in chief by complainant's solicitor, and cross-examined by the defendant Frank L. Carpenter, who appeared as the solicitor in the two causes for the defendants. On this examination Israel V. Harris appeared very reluctant to answer the questions, and was pressed many times with leading questions. Some complaint is made by defendants' solicitor of this mode of examination, but from an inspection of the record we think under the circumstances this course was justified. On this examination it appeared from the testimony of Mr. Harris that he and his brother, Myron, were interested together, not only in the lumber business carried on at Talmadge, but also at Grand Haven, at which place Israel V. had the charge and management. It...
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