Brush v. Sweet

• Decision Date: 09 April 1878
• Citation: 38 Mich. 574
• Court: Michigan Supreme Court
• Parties: Stephen Brush v. William H. Sweet and William Binder

38 Mich. 574

Stephen Brush v. William H. Sweet and William Binder

Supreme Court of Michigan

April 9, 1878

Submitted January 18, 1878

Appeal from Saginaw.

Bill to set aside conveyance. Dismissed. Complainant appeals.

Decree affirmed with costs.

Benton Hanchett for complainant.

W. A Clark and W. H. Sweet for defendants.

OPINION

Graves J.

This case comes before the court on an appeal against the dismissal of the bill. The suit was instituted in the name of Stephen Brush and Georgiana Hyslop, but in its progress her death was suggested and the cause was ordered to proceed in the name of Brush.

In 1856 Mrs. Kimberly conveyed block 69 south of Cass street in the city of Saginaw to Robert Hyslop of the city of New York to satisfy a demand he held against her husband. Sutherland & Sweet had been intrusted with the collection of the demand and there was correspondence on the subject, but after one or two letters this was conducted by Sweet and Hyslop, Sutherland taking no part in it. When Sweet came to send to Hyslop the Kimberly conveyance he wrote him that he had an offer of $ 300 for the block and that he thought that was its full value. The correspondence was continued and it eventuated in an agreement to sell and finally in a deed to Binder. The deed was given in the spring of 1858, and in August of that year Binder deeded to Sweet. In March, 1863, Robert Hyslop died leaving a will by which he gave his estate to his wife Georgiana and Brush in trust for certain purposes. In May, 1865, this action was brought and nominally by Brush and Mrs. Hyslop to set aside the deed from Robert Hyslop to Binder and that from Binder to Sweet on the charge that the legal title thus obtained from Hyslop was procured by their fraud upon him. It was alleged that the fraud was not discovered during the life of Hyslop, and Brush swears that it was first made known by Newell Barnard of Saginaw in a letter of May 30, 1864, addressed to Hyslop after his death.

The case made by the bill is that Hyslop, testator of complainants, gave a conveyance to Binder, which with the later one from Binder to Sweet, was liable to be set aside on equitable grounds; wherefore in contemplation of equity Hyslop continued to be owner subject to the repayment of the money he had received; that on his death such right and ownership were vested in complainants by the will and so remained and that complainants sued in their character of such owners for the relief to which their testator was entitled. Stump v. Gaby, 17 Eng. Law & Eq. 357.

Now it must be considered that the facts either contradict the alleged title of complainants to sue or at all events establish a state of things which according to the principles of the court must necessarily preclude any relief.

It appears that just previous to the bill and on the 16th of March, 1865, Brush and Mrs. Hyslop entered into the following agreement with Newell Barnard:

"Whereas heretofore, to wit, about the 16th day of March, A. D., 1858 Robert Hyslop (now deceased), conveyed by deed to William Binder block sixty-nine (69) in that division of the city of Saginaw, south of Cass street according to the plat of said city of record in the office of the register of Saginaw county, in the State of Michigan.

"And whereas also it is claimed and supposed that said deed to Binder was obtained by fraud and that the present holder of the title of said block was a party to such fraud, and that such property may be recovered back by the representatives of said deceased.

"And whereas also the executor and executrix of the said deceased reside in the city of New York, and are desirous of having Newell Barnard, of the said city of Saginaw, aid in the prosecution of a suit for the recovery of said property on the terms hereinafter stated.

"Now, therefore, in consideration of the premises the said executor, Stephen Brush, and the said executrix, Georgiana Hyslop, as parties of the first part, and said Barnard as party of the second part, have and do hereby agree as follows, that is to say:

"First. Said Brush executor and said Hyslop executrix, in...