Briggs v. Withey

• Decision Date: 29 November 1871
• Citation: 24 Mich. 136
• Court: Michigan Supreme Court
• Parties: Emory O. Briggs v. Silas Withey and others

24 Mich. 136

Emory O. Briggs v. Silas Withey and others

Supreme Court of Michigan

November 29, 1871

Heard November 2, 1871

Appeal in chancery from Van Buren circuit.

This bill was filed by Emory O. Briggs against Silas Withey, Miles F. Beebe, and Thomas H. Stephenson. Withey alone answered and the bill was taken as confessed by the other defendants. Proofs were taken, and the cause heard upon pleadings and proofs. The decree was for the full amount claimed.

Decree reversed with costs of this court, and a new decree entered and cause remanded, to be proceeded in principles.

Dwight May and H. F. Severens, for the complainant.

M. J Smiley and D. Darwin Hughes, for the defendants.

Campbell J. Christiancy and Cooley, JJ., concurred. Graves, J., concur in the result.

OPINION

Campbell, J.:

The bill in this case is filed to foreclose a mortgage dated February 27, 1868, to secure five thousand dollars and interest, payable at various periods, running through ten years, according to eighteen promissory notes. The mortgage was made to Joseph W. Huston, and the notes were payable to him or bearer, and stated on their face that they were secured by the mortgage. Complainant holds four notes, amounting to one thousand and fifty dollars and interest, and sues to foreclose to the extent of his ownership, averring the remaining property to be in Beebe and Stephenson.

The defense relied on is, that these securities were obtained of Withey, to settle a charge of adultery with the wife of defendant Beebe, and that they were given under circumstances which rendered them invalid.

Briggs claims to have been a bona fide purchaser without notice, but had also introduced testimony to show the validity of the transaction. We think the evidence preponderates against his being a holder without notice, and the case depends upon the general equities.

The settlement was made during a period just after proceedings had been commenced to recover civil damages for criminal conversation with Mrs. Beebe, and were begun while Withey was under arrest and preparing to give bail. The mere fact of arrest, apart from other circumstances, is not specially relied upon, as it is not claimed there was any obstruction to obtaining bail. There is no claim that there was not reasonable cause for bringing the action, as there is evidence directly bearing on the alleged adultery. The amount at which bail was fixed is not in evidence. The declaration claimed in the ad damnum clause ten thousand dollars.

There is no dispute, therefore, about the power of the parties interested to make a valid compromise of such claim, and none concerning the propriety of making it at such a time, if fairly and honestly brought about. Everything depends on the real nature of the transaction. One important element in the case which renders it peculiar, is that, under our statutes, while adultery is made a felony, it can only be prosecuted at the instance of the injured husband or wife; so that the person aggrieved obtains a control not given by our laws to those suffering from other felonies, and thereby is enabled to wield an influence very different from that of a party who can only claim dominion over civil proceedings.

The statutes cannot be supposed to contemplate that such a power as this can be properly used to secure any larger private damages, or any more favorable settlement than would be obtainable without it. It ought not to enhance a pecuniary recovery or compromise, or to be considered as a legitimate element in concluding any such arrangement.

The law, while it does not disapprove of any fair arrangement, out of court, of claims that may be the subject of litigation, scans with jealousy all transactions wherein legal proceedings are used or threatened for oppressive purposes; and while it will not be over-nice in measuring the consequences which a wrong-doer has incurred, it will not permit the fraudulent use of the means which are designed to secure, as well as may be, the purposes of impartial justice. And as cases where the liability, if existing at all, is easily fixed and ascertained at a sum certain, leave no room for dispute, except as to the one point of liability, there is much less difficulty in determining upon their fairness than where the whole amount is conjectural, even under a clear liability, and where criminal as well as civil consequences are in the minds of the parties, and influence their action. There is no presumption of law against the validity of either; but when the facts are all in proof, the inferences drawn from them will necessarily be such as are reasonably indicated by all the circumstances, as to freedom and fairness.

In the present case, Withey was notified by the officer who served a civil warrant on him in the afternoon, to come over with his bail in the evening and have the bail-papers executed. He came over for that purpose with his bondsman, Mr. Mills, and after meeting the sheriff they started out to find some one to draw up the papers. The office of Mr. John R. Baker was lighted up, and they went in and found him in the office. Up to this time there is nothing in the case to indicate that Withey had any idea of doing more than putting in his bail. He had no thought of settling, and no apparent anxiety about it.

Upon informing Mr. Baker what was wanted, he declined drawing the papers unless he should be employed in the suit. Withey said he would rather go to Kalamazoo for counsel, but Baker insisted that be would not draw the papers on other terms. Thereupon Withey, who did not know Baker, consulted with the sheriff and his surety, and upon being assured by them that Baker was competent and that he had better employ him, Withey did employ him, and so notified him. This Baker denies absolutely, but the testimony of Mills and Farmer (the sheriff) is clear and decisive, and the subsequent conduct of the parties cannot be explained on any other theory.

Baker at once requested the others to leave the office to enable him and Withey to consult together. The general tenor of Baker's talk with Withey was to urge him to settle on any practicable terms, under the representation that unless he did settle he would be likely to go to the state prison and lose all his property besides. Baker represents his advice as having been...