Campbell v. Campbell

• Decision Date: 11 October 1870
• Citation: 21 Mich. 438
• Court: Michigan Supreme Court
• Parties: William P. Campbell v. Agnes Campbell, James Campbell, Jennette Kimball, and Elizabeth Hubbard

21 Mich. 438

William P. Campbell v. Agnes Campbell, James Campbell, Jennette Kimball, and Elizabeth Hubbard

Supreme Court of Michigan

October 11, 1870

Heard July 13, 1870

Appeal in chancery from Lenawee circuit.

The complainant filed his bill in the circuit court for the county of Lenawee in chancery, for a partition of a farm of which his father died seized, having the equitable but not the legal title, leaving a widow and eight children. By the subsequent death of one of the heirs--John--the complainant claims one-eighth of John's interest--one sixty-fourth of the whole; and by purchase of an undivided half of three of his sisters--the other undivided half having been sold to James, one of the defendants, he claims thirteen and a half sixty-fourths, making in all twenty-two and a half sixty-fourths of the whole, which he asks may be set off to him. The court below made a decree for a partition as prayed for in the bill; and the defendants appeal to this court.

Decree of the court reversed with costs in this court, and a decree entered in this court in accordance with the principles laid down, and the record remitted to that court.

Geddes & Miller and A. Howell, for complainant.

A. S Millard, for defendants.

OPINION

Christiancy J.:

This was a bill praying (among other things) for the partition of a certain farm in the township of Franklin, in the county of Lenawee, described as being eighty acres off the north side of the southwest quarter of section seven, in township five south, of range three east; complainant claiming to be equitably entitled to twenty-two and a half sixty-fourths in fee, subject, however, to the dower of his mother, Agnes Campbell, in the farm, which had not yet been assigned.

The derivation and state of the title was this: John Brears, then the owner of the land, sold, and undertook to convey it to one Benjamin Ayers, in November, 1831. But, by mistake, no sufficient description of any land was inserted in the deed. Ayers, however, seems to have occupied it for years without suspicion of the defect, and without any claim from Brears, who seems to have died in ignorance of the mistake; and in January, 1845, Ayers, in good faith, conveyed the land to Andrew Campbell, the father of complainant, for the price of seven hundred and forty dollars, of which three hundred and eighty-one dollars was paid down, Campbell executing back to Ayers a mortgage for three hundred and fifty-nine dollars purchase money, upon interest.

Andrew Campbell, ignorant of the defect or want of title, went at once into possession, improving the same and residing upon it with his family until the last of August, 1846, when he died intestate, leaving Agnes, his wife, and eight children, including the complainant, all minors. John died intestate between 1845 and 1856, without issue, having never been married, and consequently his mother, Agnes, and each of his surviving brothers and sisters became his heirs in equal shares of one-eighth each.

The widow, who still continued to live upon and manage the farm, and brought up her family there (as will be more fully noticed hereafter) having fully paid off the mortgage given by her husband and taken an assignment of it to herself in 1853, afterwards, in 1859, having become aware of the defect in the deed from John Brears to Ayers, applied to Thomas Brears, the son and sole heir of John Brears, and for a nominal consideration (but without any payment in fact) obtained from him a quit-claim deed of the land to herself, by a proper description. In 1864 the complainant and his brother James, one of the defendants, purchased the right and interest of three of the sisters, Marion, Nancy and Hannah, and took from them a quit-claim deed, paying each of them one hundred dollars therefor.

Complainant claims, 1st. That the equitable title having belonged to his father, and the deed of Thomas Brears to his mother, intended by the grantor only to correct the error in the deed to Ayers, and having been given without any new consideration, ought, in equity, to inure to the benefit of the mother, and all her children then living, according to the respective interests that each of the children would have held if a good title had vested in their father; and that such was the intent of both parties at the time she took the deed. 2d. That the mortgage was paid off and the notes destroyed before it was assigned to her, and that it was paid from the income and avails of the use of the farm produced mainly by the labor of the complainant and his brothers, John and James, and that she was not therefore equitably entitled as against the heirs, to a lien upon, or compensation from the land for the amount of the mortgage; and, 3d, While he does not deny that the farm has been greatly increased in value since his father's death, by improvements made and buildings erected, he denies that his mother is entitled to any greater share, or that his share is to be in any respect diminished in consequence; because, as he insists, the improvements were made by him and his brothers, John and James, and claims by his bill, that he himself built the house on the farm at the request of his mother and the other heirs, at a cost of $ 750, for which he never received any pay (though in his testimony he admits that he had the farm four years by agreement for building a house of specified dimensions, but built it larger and put in a cistern); and claims that he and his brother James built a barn, for which he never received any pay.

The defendants, Agnes, James, and the two sisters, who have not sold out, insist in their joint and several answer and in their testimony, that of the amount paid down by Andrew Campbell upon the land, over two hundred dollars was paid by notes which belonged to said Agnes; that her husband on his death-bed gave her the farm, on condition that she should pay off the mortgage and support the family; that she did support and bring up the family at a cost exceeding all the help rendered by them to her; that she paid the mortgage and had it assigned to her for her own benefit; that the deed was obtained by her from the said Thomas Brears, with the intent, and with consent of complainant and the other heirs, that she should hold the title and have the use of the farm during her own life, they to have their respective shares after her death; that she was equitably entitled so to hold it; that complainant has recognized her title by hiring the farm from her as owner, and occupying it under such hiring at two different times; that complainant during his minority neglected his duty to his mother, being unsteady and disobedient, doing comparatively little for her or the support of the family; that he was fully paid for building the house by the use of the farm for four years under an agreement to that effect made with his mother, and by personal property received of her for the extra expense of building larger than agreed.

And, finally, if the court find that complainant is entitled to any present remedy, he having no legal title, and being compelled to seek the aid of a court of equity to procure it, he is bound to do equity. And they insist that the mother is equitably entitled to an additional share in the land corresponding to the proportion of the original purchase paid by the notes which belonged to her, the mortgage and interest paid by her, and the increased value of the farm by reason of the buildings and other improvements she had put on it, and they aver that complainant was fully paid for the house he erected by four years' use of the farm under his own agreement with the mother, and for any extras, by personal property, which he received of her for that purpose.

As the part payment for the farm made by the notes, which had belonged to the mother, we think the fact that she consented to the transfer of the notes by her husband in payment for the land, and to his taking the title in his own name without insisting upon any agreement for repayment or conveyance of any interest to her, must be considered as conclusive evidence of the gift of the notes to her husband, and without any intention or right on her part, to reclaim on that account, any interest in the land as against him or his heirs. As to the verbal gift of the land by the husband during his last sickness--which appears by the evidence to have been merely a conversation, when the making of a will was suggested to him, he declining to make one and saying that if she paid the mortgage and brought up the family it would be hers--it is not claimed that it constituted a valid, nuncupative will, nor a valid contract, and we think it was no more than the expression of an erroneous opinion. It can, therefore, add nothing even to the equitable rights of the widow, which must be determined by the other facts and circumstances of the case.

As to the legal title which she obtained by the deed from Thomas Brears, the evidence shows that the main object in obtaining the deed, and the only object of the grantor in making it was to correct the error in the deed made by his father to Ayers; that until after the deed was applied for and he had assented to give it, it had not occurred to either of them to whom the deed was to be made for this purpose, and that the notary who was called on to draw it, first suggested that a deed to a dead man would not be good, and that it could not, therefore, be made to Andrew Campbell, whereupon the widow suggested it should be made to her, as she had paid for it, and it was so executed, without any new consideration. And we infer from all the circumstances, that the widow, though taking the deed in her own name, did so with the idea of securing the rights of the children as well as her own,...