Brown v. Harrison

• Decision Date: 04 June 1928
• Docket Number: No. 147.,147.
• Parties: BROWN et al. v. HARRISON et al.
• Court: Michigan Supreme Court

242 Mich. 603

219 N.W. 606

BROWN et al.

v.HARRISON et al.

No. 147.

Supreme Court of Michigan.

June 4, 1928.

Appeal from Circuit Court, Washtenaw County, in Chancery; Geo, W. Sample, Judge.

Suit by Esther Brown and others against Margaret Harrison and another. Decree for plaintiffs, and defendants appeal. Decree below set aside, and decree entered.

Argued before the Entire Bench.Floyd E. Daggett, of Ypsilanti, and Andrew J. Sawyer, of Ann Arbor, for appellants.

Frank B. DeVine and Arthur Brown, both of Ann Arbor, for appellees.

FELLOWS, J.

John Harrison died testate November 26, 1892, the owner of 40 acres of land in Superior township, Washtenaw county, then worth about $1,400. He left a widow who was his second wife and six children. The widow elected to take under the statute. His estate was administered and the final account allowed July 10, 1894. On February 5, 1896, the six children filed a bill for partition. The widow entered her appearance by J. Willard Babbitt, March 3; on April 14, Harrington and Thompson were substituted as solicitors for defendant. There is testimony that Mrs. Harrison was somewhat ignorant and did not promptly sign her answer; her default was entered but later set aside. A final decree was entered April 17, 1897. Mr. E. B. Norris represented her at the time the decree was taken. The decree provided that the widow should have the use of the farm as a homestead during her widowhood and her dower interest during her life, and the children were each given a sixth interest after her death. Costs taxed at $25 were awarded Mrs. Harrison. On June 14 execution for the costs was issued and levied on the complainant's (in that case) interest in the land. Sale was made and certificate filed in the register's office August 3. The execution was returned to the (then) register in Chancery. The sale was to Darwin C. Griffin for $81.50. On November 29, 1898, he deeded to defendant Ely, who was the son of Mrs. Harrison by her first marriage. He has since worked the farm although living elsewhere, has paid taxes, and supported his mother until her death. The sheriff's deed and the deed of Ely were both recorded. This bill filed by the two living children of Mr. Harrison, the other plaintiffs being grandchildren, seeks to set aside the execution sale. While it names Margaret Harrison as a defendant, it was not filed until after her death. Judge Harrington, Professor Thompson, Judge Babbitt, and Mr. Norris were also dead. Indeed, Judge Kinne, who heard the case, the clerk and deputy clerk, the sheriff who made the levy, and about every one else connected with the former case around 30 years ago have paid the debt of nature. There is no claim of any irregularity in the execution sale. None of the six complainants offered to pay the costs or any part of them. The premises are now worth from $10,000 to $12,000.

The plaintiffs claim in their bill that the sale should be set aside because it was agreed that only three acres were to be levied upon and that they have remained quiescent in the belief that the levy was only on this amount of land. No one testifies to the making of such an agreement. Outside of some slight testimony that the widow recognized some right of the children, the only testimony tending to sustain such a claim comes from one of the plaintiffs, who testifies that ‘somewhere about 1897 or the latter part of 1898’ she wrote to the judge of probate to find out about the proceeding. The judge of probate was Judge Babbitt, and she says he wrote her that the widow had the property as long as she lived and then it went to the heirs except three acres which had been sold for costs, and in answer to a leading question she said the letter stated that it has been agreed to sell three acres from the east part of the farm for the costs. She was unable to produce the letter.

While Judge Babbitt originally appeared for Mrs. Harrison, he took...