Duffy v. White

• Decision Date: 15 December 1897
• Citation: 73 N.W. 363,115 Mich. 264
• Court: Michigan Supreme Court
• Parties: DUFFY ET AL. v. WHITE ET AL.

73 N.W. 363

115 Mich. 264

DUFFY ET AL. v. WHITE ET AL.

Supreme Court of Michigan

December 15, 1897

Appeal from circuit court, Wayne county, in chancery; Joseph H Steere, Judge.

Bill by Rebecca M. (White) Duffy and Edward F. Duffy, trustee against Elmer L. White and Margaret Sara White, to set aside certain instruments. Decree for plaintiffs, and defendants appeal. Reversed.

Bethune Duffield (Henry M. Duffield, of counsel) for appellant Elmer L. White.

Wm. F McCorkle, for appellant Margaret Sara White.

Edward F. Duffy (T. A. E. & J. C. Weadock, of counsel), for appellees.

HOOKER J.

The complainant Rebecca M. Duffy married the defendant Elmer L. White, at Bucyrus, Ohio, in 1886, and took up her residence at Pittsburg, Pa., with him. She was the daughter of one Kearsley, of the former place, and was the owner of a contingent remainder in fee of an estate, under a will made by her grandfather, which gave to her father a life estate in said property, with remainder to his (her father's) legitimate issue, if he should leave any; otherwise to his (the testator's) grandchildren, share and share alike. Her father is still living, and has possession of the property. The parties mentioned lived together as husband and wife until June, 1893, at which time the husband sent his wife to her father, and declined to live with her longer unless she should assent to certain conditions. He professed to have discovered her infidelity. Both parties had competent legal counsel, and the complainant Mrs. Duffy (then White) was advised not to consent to the conditions which he at first imposed, which contained a confession of her adultery. This was eliminated, and on August 15, 1891, at the home of the parties, in Pittsburg, in pursuance of a verbal agreement made at Bucyrus, she executed a conveyance of all of the property in question to one Joseph Mackin, a minor. This instrument was a full warranty deed, except as against the father's life estate, and without condition, but was made with the understanding that Mackin should act as the channel through which the legal title to the property should be conveyed to Elmer L. White for the purposes mentioned in an agreement executed at the same time. In fact, Mackin executed and delivered a deed to White at an early an hour upon the same day, and never had possession of the deed from Mrs. White. This deed from Mackin was an unconditional deed of bargain and sale, and contained covenants of warranty. It was not like a quitclaim deed, which, as it professes to convey only an existing interest, is ineffective to convey a title subsequently acquired; and neither Mackin nor the complainants can deny its effect as a conveyance of the title, though it was acquired after his deed was delivered to White. Shotwell v. Harrison, 22 Mich. 410; Lee v. Clary, 38 Mich. 223; Smith v. Williams, 44 Mich. 240, 6 N.W. 662; Haney v. Roy, 54 Mich. 635, 20 N.W. 621; Brayton v. Merithew, 56 Mich. 166, 22 N.W. 259; La Coss v. Wadsworth, 56 Mich. 421, 23 N.W. 75; People v. Miller,

79 Mich. 93, 44 N.W. 172; Pendill v. Society, 95 Mich. 491, 55 N.W. 384; Naylor v. Minock, 96 Mich. 182, 55 N.W. 664; Ryan v. U. S., 136 U.S. 68, 10 S.Ct. 913. A trust agreement was executed at the same time that the deed to Mackin was executed by White and his wife, a copy of which agreement is as follows: "Memorandum of agreement between Elmer L. White, of the city of Pittsburg, county of Allegheny, and state of Pennsylvania, party of the first part, and Rebecca M. White, his wife, party of the second part, is as follows: Whereas, an estrangement and separation has recently taken place between said parties, which, for the sake of their minor child, they have agreed to terminate, and resume marital relations; and whereas, they have deemed it advisable to reduce the terms of said reconciliation to writing, in order that there may be no misunderstanding in future in regard thereto; and whereas, said Rebecca M. White is the owner, in her own right, of certain valuable real estate and property, situated in the state of Michigan, subject, however, to the life estate therein held by her father, Edmund R. Kearsley, of Bucyrus, Ohio, and which said property they have agreed to devote to the common benefit of themselves and their minor child, Margaret Sara White, as hereinafter provided: Now, this agreement witnesseth, in consideration of one dollar to each in hand paid, receipt whereof is hereby acknowledged, and the covenants and agreements hereinafter set forth, said parties agree each with the other as follows: First. Said second party, for a nominal consideration, is to convey forthwith all of said property to Joseph F. Mackin, of Pittsburg, Pennsylvania, as depositary, who shall, for a nominal consideration, reconvey the same to Elmer L. White. Said conveyances are to be absolute in their terms (reserving, however, the life estate of said Edmund R. Kearsley, as above set forth); but the estate thereby conveyed to the said Elmer L. White shall, as a matter of fact, be merely a trust estate for the use and purposes herein set forth, and this agreement shall be considered as a part of the consideration therefor. Second. Said second party further agrees to attempt no extravagances or unnecessary expenses of any kind, and to accept willingly such amount as said Elmer L. White may be able to expend for her maintenance and comfort, and in such sum or sums, and upon such terms, as are hereinafter set forth. Third. Said second party is to live wherever said Elmer L. White may desire to establish a home, and to offer no unreasonable objections to his choice and selection thereof. Fourth. Said party of the first part, upon delivery to him of said deed and upon the execution of this agreement, does hereby undertake and agree as follows: (a) To provide for his family a comfortable and substantial home in such place as he may decide is for his best interest and that of his family, and in accordance with his means and his income. (b) To provide for the reasonable wants and maintenance of his said family out of his own means, in an amount not exceeding, however, the sum of three thousand dollars per annum until the termination of the life estate of said Edmund R. Kearsley in the property this day conveyed to him, above referred to, and the collection by him of the income therefrom. (c) From the income of the said property collected by him, and after the payment of all necessary disbursements, including taxes, commissions, insurances, repairs, etc., in connection therewith, said first party is to deposit monthly one-half thereof to the credit of the said party of the second part, in such bank as she may select; and, immediately upon such payment to her, said second party is to waive and relinquish all claims upon party of first part for support and maintenance out of his own private funds. (d) The remaining one-half of said net income is to be applied by the party of the first part for the maintenance and education of said minor child, and for his compensation and services in the management of said property. (e) Said party of the first part is to have full authority and discretion in the care, improvement, and management of said property, even to the sale, incumbrance, alienation of all or part thereof, and the reinvestment of the proceeds arising therefrom." It was duly acknowledged and authenticated. At this point it should be stated that we find from the evidence that the complainant Mrs. White had, by reason of her adultery, given her husband abundant cause for declining to continue the marriage relation. The execution of the paper mentioned was followed by the resumption of the marital relations, which continued until March, 1894, when the husband found conclusive evidence of her misconduct with different men. He then left the house, and commenced proceedings for divorce. About this time she availed herself of the good offices of one Martin Duffy, a policeman, who introduced her to his brother, a lawyer, who is a complainant with her in this case; and he began a suit, for her, against White, in relation to the home of the parties; and, upon a settlement, White paid to him $7,500, and she agreed that White should have the custody of their child. In February, 1895, Edward Duffy, with Mrs. White's approval, it is said, persuaded Mackin to give him a conveyance of the premises; taking an unqualified deed, with full covenants of warranty. Mrs. White, about this time, eloped with Martin Duffy, and lived with him at various hotels about the country for about two years, when, if she is to be believed, she married him. This bill was filed

by Mrs. White and Edward Duffy to set aside the instruments executed on the 15th of August, 1894, upon the ground that Mrs. White executed them by reason of the coercion of her husband, and without knowledge of their contents.

It was further alleged, in an amended bill, that Mackin had no title when he executed the deed to White, as it was previous to the execution of the deed by Mrs. White to him, and that he had at her request, subsequently made a deed of the premises to Duffy, who on "February 5th, or a short time thereafter, executed a declaration of trust in her favor." Mrs. White is the main witness offered on behalf of the complainants, and we find ourselves unable to place any reliance...