Cummings v. Freer

• Court: Michigan Supreme Court
• Writing for the Court: Christiancy, Ch. J.
• Citation: Cummings v. Freer, 26 Mich. 128 (Mich. 1872)
• Decision Date: 07 November 1872
• Parties: Franklin D. Cummings v. Samuel C. Freer and others

26 Mich. 128

Franklin D. Cummings v. Samuel C. Freer and others

Supreme Court of Michigan

November 7, 1872

Heard October 23, 1872

Appeal in Chancery from Washtenaw circuit.

Decree of the circuit court affirmed, with costs to complainant in both courts; and the record remitted to the court, for the execution of this decree.

C Joslin and Felch & Grant, for complainant, were stopped by the court.

Lawrence & Frazer, for defendants.

OPINION

Christiancy Ch. J.

The bill in this case was filed by John M. Cummings, and is prosecuted by his executor. Though unartificially drawn, it presents, when its statements are placed in logical order, substantially the following state of facts, as the basis of the relief which it asks: That in the year 1842, one Jonas E. Freer, of the township of Lima, in Washtenaw county, having four sons, hereinafter named, and being the owner in fee of the south half of section twenty-one, and the west half of the northwest quarter of the same section, in said township, had before that day (no particular day had been previously mentioned), agreed to sell and convey the west half of the southeast quarter of said section, to his son, Samuel C. Freer (one of the defendants); and on that day, "in pursuance of said agreement, and for a good and sufficient consideration," executed and delivered to said Samuel C. Freer, a deed, which both parties supposed to be a good and sufficient deed for the conveyance of said lot (west half of southeast quarter), in pursuance of said agreement; that on the same day of the date of said deed to said Samuel C., the said grantor executed deeds to his three other sons, conveying to them all the balance of his said lands on said section, the several portions thereof to each in severalty; that (among other lands) the conveyance to Alba Freer was of the east half of the southeast quarter of said section, excepting a right of way across it for the use of said Samuel C., thus deeding to his four sons all the land which the grantor thus owned; that said Samuel C. soon afterwards entered into the possession of said west half of southeast quarter, so intended to be conveyed to him, which was then mostly wild, and has continued to occupy it ever since, and has made large improvements thereon.

That Jonas E. Freer, the grantor, died in the year 1854, leaving no estate.

That in the drawing of the said deed to said Samuel C., a mistake was made (as appears in the record thereof) in this: that the deed described the premises as "the west half of the south quarter" of said section, leaving out the word "east," between the words "south" and "quarter."

That on the 8th day of December, 1857, said Samuel C., with his wife, Dolly A. Freer, also one of the defendants, executed to complainant a mortgage on said west half of southeast quarter, describing it also as the land on which said Samuel C. then resided, to secure the payment of a promissory note, made by said Samuel C. to complainant, for four hundred and thirty-nine dollars, payable December 8th, 1861, with interest at ten per cent., which mortgage was duly recorded on the 12th day of December, 1859 (referring to the book and page in the office of the register of deeds).

That after the execution and recording of this mortgage, some eight years after the death of said Jonas E. Freer, the grantor (which would be in the year 1862), said Samuel C. learned the said mistake in said deed from his father to himself; and, thereupon, at his request, and without consideration, all the heirs of said Jonas E., the grantor, except said Samuel C. and Mary Townsend (one of the defendants), executed and delivered to said Dolly A. Freer, a deed or deeds of conveyance of said premises, with the intent, on the part of said Samuel C. and Dolly A., to defraud the complainant of the benefits of his mortgage.

The bill waives an answer under oath, prays for a correction of the deed, so as to make it describe the land intended to be conveyed; and after describing the mortgage and the amount due upon it, prays a foreclosure and sale, and for general relief.

To this bill, the defendants, Samuel C. and Dolly A. Freer, separately demurred, and this demurrer being overruled, and the bill being taken as confessed by Samuel C. Freer, and Franklin Cummings, the executor of the original complainant (John M. Cummings), having been allowed to come in and prosecute the bill, the defendants, Dolly A. Freer and Mary Townsend, put in an answer, admitting that Jonas E. Freer was the owner of the lands mentioned in the bill, in the year 1842, denying all knowledge of any agreement by him to sell the lot in question to Samuel C., or that said Samuel C. took possession of the lot under the deed as alleged in the bill, or that the same was nearly all wild in 1842, or that said Samuel C. occupied it for the length of time mentioned in the bill, or for any time, in his own right, or made the amount of improvements alleged; but admitting that said Samuel C. and Elisha Freer worked a part of the land for one or two years before the death of Jonas E. Freer, and alleging that since the same was conveyed to said Dolly A., said Samuel C. had worked the same for her. They admit that Jonas E. Freer died in 1854, but deny that he left no estate; deny all knowledge of any mistake in the deed, and all allegations of mistake or fraud.

They allege that Jonas E. Freer, long after the year 1842, occupied and used the lot for his own benefit, and that, for some years after that date, said Samuel C. was at work for said Jonas E. Freer, and that said Samuel C. was a minor until after the year 1842, deny that there was any agreement for the conveyance of any other land to said Samuel C. than that described in the deed, or for any conveyance whatever, except what is shown by the deed; deny that said Jonas E. Freer deeded to his sons all the land he owned, as alleged in the bill, and allege that he exercised the same control over the lot in question after the deed to said Samuel C. as before; admit that in the years 1862 [26 Mich. 133] and 1863, all the heirs of Jonas E. Freer (except said Samuel C. and Mary Townsend), by various deeds, conveyed the lot in question to Dolly A. Freer (except the undivided one-tenth, which descended to said Samuel C., and the one-fortieth part, which descended to said Mary Townsend).

They deny that, at the date of the mortgage mentioned, said Samuel C. had any right, title or interest in said lot except the said one-tenth, or that said Dolly A. then had...