Brainard v. Feather

• Decision Date: 27 March 1900
• Citation: 82 N.W. 212,123 Mich. 462
• Court: Michigan Supreme Court
• Parties: BRAINARD v. FEATHER et al.

82 N.W. 212

123 Mich. 462

BRAINARD v. FEATHER et al.

Supreme Court of Michigan

March 27, 1900

Appeal from circuit court, Washtenaw county, in chancery; Edward D Kinne, Judge.

Bill by Nancy A. Brainard against Joseph Feather and another for subrogation to the claim of Joseph Feather against the estate of Caroline Feather, deceased. From a decree for complainant for only part of the relief sought, complainant appeals. Reversed.

Randall & Jones, for appellant.

Arthur Brown and M. J. Lehman, for appellees.

LONG J.

It appears that in 1889 the complainant held three notes given by Joseph Feather and Caroline Feather, his wife, amounting to $1,800. Mrs. Feather was the owner of 72 acres of land upon which the parties resided. She died in May, 1890 leaving no children; and her estate descended one half to her husband, Joseph Feather, and the other half to her brothers and sisters. Soon after Mrs. Feather's death, complainant urged defendant Joseph Feather to pay the amount of notes held by her. An arrangement was made by which he secured the payment of this $1,800 to complainant by giving his own note and a mortgage upon his undivided one-half interest in the said 72 acres of land left by Mrs. Feather. The notes given by Joseph Feather and his wife to complainant were one of $500, one of $100, and one of $1,200. These notes were surrendered by complainant to Joseph Feather on the giving of the mortgage on June 25, 1890. On this same date Joseph Feather purchased from complainant her one-eighth interest in the said 72 acres of land to which she was heir as a sister of Caroline Feather, deceased. The purchase price of this one-eighth interest was $675, and was secured by land contract. Feather paid the interest on the mortgage and on the land contract to June, 1894. In June, 1895, complainant filed a bill to foreclose her mortgage. Joseph Feather was made the party defendant. He did not answer the bill, and a decree of foreclosure was granted, and the premises sold August 12, 1896. The complainant became the purchaser of the half interest covered by this mortgage. Joseph Feather had also bought the one-eighth interest in the 72 acres of another sister of his deceased wife. At the commencement of the foreclosure proceedings by complainant she gave notice of the termination of the land contract with Feather. The sister who had given a similar contract for her interest to him also gave notice of the termination of her contract, for nonpayments thereunder. A bill for partition of the premises was filed by another sister. This partition proceeding resulted in a decree by which Feather was given one half of the 72 acres, and the brothers and sisters given one-eighth each, or the other half interest. The title then stood as follows: The complainant had the half which had descended to Feather by virtue of the decree of foreclosure of her mortgage given by him to secure the $1,800 in notes. She also had a one-eighth interest under the partition, the title to the other interests being in her brothers and sisters. In the spring of 1896 she purchased their interests, and entered into possession of the whole 72 acres. During this time no administration had been had upon the estate of Caroline Feather. In the fall of 1896 one Doane, claiming to be a creditor, presented a petition to the probate court for the appointment of an administrator, and one was appointed. In the course of that administration Joseph Feather presented, as a claim against that estate, the three notes he had received from the complainant, and for which he gave the $1,800 mortgage. His claim was allowed at $1,300. The contest over that claim was appealed to this court. Feather v. Feather's Estate, 116 Mich. 384, 74 N.W. 524. It was stated in the opinion in that case that: 'Claimant presented for allowance a claim against his deceased wife. The claim was for money paid in discharge of a note executed by deceased and claimant. Claimant asserts that he was a mere surety, and that the obligation was the obligation of deceased.' The jury in that case found in favor of ...