Daily v. Litchfield

• Court: Michigan Supreme Court
• Writing for the Court: Christiancy J.
• Citation: Daily v. Litchfield, 10 Mich. 29 (Mich. 1862)
• Decision Date: 22 April 1862
• Parties: Dennis Daily and another v. Liba L. Litchfield and another

10 Mich. 29

Dennis Daily and another v. Liba L. Litchfield and another

Supreme Court of Michigan

April 22, 1862

Heard January 15, 1862 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Appeal from Cass Circuit in Chancery.

Dennis and Patrick Daily filed their bill of complaint against Liba L. and Sarah Litchfield, setting forth that on August 29 1856, said Liba L. Litchfield was possessed of thirty-eight acres of land in Cass county, which, on that day, he agreed to exchange with complainants for the same quantity of land owned by them in fee simple, and for that purpose they entered into a contract with said Liba L. Litchfield, of which the following is a copy:

"This contract, entered into this twenty-ninth day of August, 1856, by and between Liba L. Litchfield, of the township of Silver Creek, county of Cass, and State of Michigan, of the first part, and Dennis Daily and Patrick Daily, of the same place, of the second part, witnesseth, that the said parties hereby agree to exchange the following described parcels of land, to wit:

"The said party of the first part agrees to exchange the west part of the southeast fractional quarter of section number four, in township number five south of range number sixteen west, in the State of Michigan, and county of Cass, containing thirty-eight acres of land, be the same more or less, and now occupied by him, for the same quantity of land owned by the said party of the second part, being the same number of acres off from the east side of the southeast fractional quarter of section thirty-two, in township number four south of range number sixteen west, in the State of Michigan aforesaid, and county of Van Buren. Each party hereto is to give the other a full and perfect warranty deed of his land as above described, on or before the first day of June, 1858, or within sixty days thereafter.

"The said party of the second part are also to break up, before the first day of December next, as much land on the land they exchange and heretofore belonging to them, as there is broken up on the north side of the highway on the land heretofore belonging to the party of the first part, which they receive in exchange as aforesaid, and on or before the first day of May next are to fence as much land on the above described land which the party of the first part receives, as there is now fenced on the land they receive, and are also to furnish lumber for the doors and flooring for a house the same size as that on the land they receive. Either party forfeiting the above contract, by failing to comply therewith, is to forfeit to the opposite party the sum of fifty dollars, as liquidated damages for the non-performance thereof.

"In witness whereof, said parties have hereunto set their hands and seals, the day and year first above written." (Signed and sealed by the parties.)

The bill states that the reason why an exchange of deeds was not made at the date of the contract, was that said Liba had not then a title to that to be conveyed by him, but held under a contract of purchase from one Lawrence.

That complainants took possession of the lands to be conveyed to them except of the house thereon, and have since occupied and worked the same, and Litchfield has occupied and worked the land so to be conveyed to him. That complainants "did break up and fence the land, as agreed in said contract, within the time therein agreed upon, and said Litchfield has, since the date of said contract, been in the sole occupancy and possession of the same, and put in and cultivated and harvested crops thereon, and exercised all the acts of ownership and control of the whole thereof, to this date." "That they did also furnish the lumber for the doors and flooring for house, as agreed in said contract; that the same was not received by said Litchfield at the time, as said Litchfield then said he did not want to use it then, and that he then agreed to notify complainants of the time when he should want it; that he should not want it until some time this fall. But they say and aver, that they have kept said lumber on hand, both at the time agreed upon and up to this time, and have been ready and willing to let said Litchfield have the same at any and all times, and of which readiness said Litchfield has been at all times informed, and that no such notice has been given to your orators by said Litchfield."

They say "and aver, that said contract, and all things therein contained, by them to be done or performed, have been by them done and fully performed, as therein agreed; and that within the time agreed upon, to wit: on the thirtieth day of July, 1858, and of which time and place they had given said Liba L. Litchfield more than five days' notice; that they met at the office of N. B. Hollister, in the village of Dowagiac, in said county, that being the place where said contract was entered into, and being also the place at which complainants and Litchfield had, at the time of entering into said contract, agreed upon for the purpose of exchanging deeds, and that they then and there made and executed, ready for delivery to Litchfield, a warranty deed of the land which they had exchanged with Litchfield as aforesaid, which deed was signed and acknowledged by them and their wives, and left with said Hollister, to be delivered to Litchfield, upon his complying with the conditions of said contract, on his part to be performed, and of which performance of said contract, on their part, they duly notified said Litchfield on the next day.

That Litchfield did not attend at the time and place so appointed for the exchange of deeds, nor at any other time, but has wholly and entirely neglected and refused to perform his contract, and to convey said land to complainants, as agreed by him in said contract, and for the purpose of defrauding complainants, has caused the land which was to be conveyed to complainants, to be deeded by said Lawrence to said Sarah Litchfield, the wife of said Liba, without consideration, except that paid by said Liba to said Lawrence, and with full notice of the existence of the contract between her husband and them.

The bill prays that the deed of said Sarah be declared fraudulent and void, and that defendants be decreed to convey the lands to complainants, in accordance with the contract.

To this bill Sarah Litchfield demurred, on the ground that not being a party to the contract, she could not properly be made a party to the bill. The other defendant also demurred, and assigned the following causes:

First. There is no allegation that at the time when said exchange was to be made, or at any other time, said complainants were seized, in fee simple, of a sure and indefeasible estate in the land to be conveyed by them, or that the same was free from incumbrance.

Second. There is no allegation they tendered the deed executed by them to the defendants, or tendered to said defendants a deed for the conveyance of their land to complainants, and requested defendants to execute and acknowledge the same.

Third. There is no allegation showing how said complainants performed the stipulations for breaking and fencing to be done by them.

Fourth. It appears from complainants' bill that defendants are husband and wife, and it further does not appear that the wife, Sarah, is unwilling to convey any estate she may have in the land, or that she has ever been requested to convey to said complainants, or that she is a party in any manner or degree to the fraud charged.

Fifth. That said bill ought at least to have contained an averment that said defendant, Sarah, is ready and willing to convey her right of dower which she would have had in said land had the same been conveyed, as agreed, to her husband.

Sixth. That the relief prayed for, viz: that said defendants be divested of all estate in said land, and then be compelled to convey the same to said complainants, is absurd and impossible, and is not in accordance with the case made by the bill, which is for the specific performance of a contract set out therein.

The demurrers were overruled, and the defendants then put in their joint answer.

The answer admits the contract for exchange of lands, etc., set up in the bill; denies that the complainants did the breaking and fencing, or furnished the lumber as agreed; denies that any deed of conveyance on the part of complainants was ever actually tendered to them, or any deed on their part ever demanded of them;...