Dull v. Merrill
| Decision Date | 02 March 1888 |
| Citation | 69 Mich. 49,36 N.W. 677 |
| Court | Michigan Supreme Court |
| Parties | DULL v. MERRILL. |
Appeal from circuit court, Monroe county.
LONG J.
The bill in this cause was filed in the circuit court for the county of Monroe, in chancery, to restrain the defendant from selling certain real estate in said county to satisfy a judgment in his favor against Joseph C. Dull, the husband of complainant, in a suit at law commenced by attachment in said circuit court. The defendant filed his answer in the cause admitting the levy of the attachment, and claiming that the property described in the bill was conveyed to the complainant by Joseph C. Dull without consideration, and in fraud of creditors. A general replication was filed, and the cause was heard in open court. Decree was entered in favor of complainant, which provided that "defendant do desist and refrain from proceeding to sell the land of complainant on any judgment he may obtain under his said attachment suit against Joseph C. Dull, and that he be perpetually enjoined from proceeding to sell any of the premises described in the bill upon any execution which may issue upon any judgment he may obtain against Joseph C. Dull and that complainant recover her costs in such proceedings." From this decree defendant appeals to this court.
While the record is quite voluminous, and the briefs of counsel discuss many questions, both of law and fact, it seems to us there are but few questions in controversy in this case. The questions in controversy are presented by defendant's brief as follows: (1) "Did the complainant loan her husband money, as she alleges, and was this money still unpaid, and a valid claim in her favor at the date of the conveyance to her of January 8, 1883, and was the property so conveyed worth no more than the amount of such indebtedness?" (2) "Did the complainant, prior to the purchase by her husband from the defendant of the machinery above mentioned, make to the defendant or his agent representations as to the financial ability of her husband, upon which defendant relied in trusting him; or did she by her silence, or by her conduct in any other way, justify defendant in believing that her husband owned the property, on the strength of the ownership of which he obtained the credit?" Defendant's counsel also states another proposition as in the case: (3) "Has the defendant any adequate remedy in the premises without recourse to the property attached to satisfy his claim?" We shall not discuss this last proposition, as it has no force, and could in no manner affect the rights of the complainant.
There are certain facts in the case that are undisputed: That the 40 acres complainant claims as a homestead stood upon the record in the name of Joseph C. Dull, and was occupied by him with his family, and used by him, from the time of his first removal to this state until January 8, 1883. That the other 40 acres mentioned in the bill also stood in the name of said Joseph C. Dull, and was used and occupied by him and his family for several years prior to said January 8th, and that complainant had never before said date held title to either of said parcels, and that after said date no material change took place in the use or occupancy of said property. That in November, 1882, during the time when said land was so owned and occupied by said Joseph C. Dull, he purchased of defendant certain farm machinery (an engine and clover-huller, amounting in value to $1,470) on credit; giving defendant his own notes for a portion of the purchase money, and for the remainder assigning to him notes of D. R. Bolton, which he indorsed, and for the payment of which he remained liable to defendant. That complainant knew of this purchase at the time. The defendant brought suit in Toledo on said Bolton notes, indorsed by defendant, in December, 1882, and later brought suit upon the other notes; and that complainant knew of the bringing of these suits, and the purpose for which these suits were brought. That while said Joseph C. Dull was so indebted to defendant, and such indebtedness fully known to the complainant, the said Joseph C. Dull conveyed all his real and personal property to complainant. That this deed of January 8, 1883, to complainant contained, not only the two 40-acre tracts of land, but also another 40 in the township of Ida, which had been already, in the fall of 1882, bargained by written contract to one Hoover, who received his deed in the spring of 1883; and that part of the purchase money of this 40 was received, and used in payment of some small incumbrance on the land described in the bill, and a part of such money was received and used by Joseph C. Dull. The testimony bearing upon the question of the indebtedness of Joseph C. Dull to the complainant is that of complainant, Joseph C. Dull, their son David, and one S. M. Bartlett. The complainant's story of this indebtedness is that in 1853 she received from her grandfather's estate $250, and let her husband have it, and took his note or bond. That she cannot read writing, nor write, but can read a little coarse print. That in 1856 she received from her brother's estate $978. She let her husband have that, and took his note. That these notes were never paid, nor any interest ever paid upon them; and on January 8, 1883, in settlement for these amounts of money and interest, which at 6 per cent. would amount to over $3,000, she took the deed of the farm from her husband; and that the whole transaction was bona fide, and the deed taken in good faith in payment of an honest debt. These statements are corroborated by complainant's husband.
Defendant's counsel now claim that there is no testimony whatever upon the indebtedness of the husband to complainant, except the testimony of husband and complainant. It does appear, however, from the testimony of their son David, that upon one occasion, six or seven years ago, complainant asked her husband to convey the land to her for her debt, and that he agreed to do so; and also from the testimony of S. M. Bartlett, a witness called for complainant, that on September 17, 1877, while he was surveying there, and while staying at the house of the parties overnight, the complainant then wanted her husband to make a deed to her of the land, and said it was bought with her money; that the husband admitted this, and said he would make the deed when he had time.
Defendant's counsel also claim that no weight should be given to the testimony of complainant and her husband, for the reason that they are unable to state the terms of the notes, that they do not produce the notes, nor have they either of them seen the notes for many years. That the husband testifies he never paid any interest on the notes; and complainant testifies, first, that he did pay some interest, and, later, being unable to state when, where, or how the interest was paid, and that during all those 30 years she did not ask for interest because she did not need the money; and especially when the husband testified that the money was put into his hands to handle, and the complainant that she gave it to her husband to take care of,-that these facts do not seem to show an intention on the part of the complainant to insist on payment of the money so received by her husband. These facts, however, were drawn out upon the cross-examination of the witnesses by defendant's counsel. The cross-examination was a rigid one, and it is not surprising that the complainant-a woman wholly unlettered, and after such a length of time-was unable to state more minutely all the details of the transaction between herself and husband in regard to the notes, or their terms or conditions.
It is also claimed by defendant's counsel that the $250 received in 1853 was invested in a house and lot, under complainant's direction, and so remained until the spring of 1869, when it was sold, with her approval, for $75, and the money sent to complainant, and invested in the purchase of the homestead, with her consent and approval. That, of the $978 received by complainant from the estate of her brother between $800 and $900 was invested in land in Pennsylvania. That this investment in land was also made under the direction of the complainant, and she directed her husband to take the deed in his own name. That, after holding this Pennsylvania land for a few years, it was sold for $900, which was loaned to a man by the name of Hanser until the fall of 1868, when, with the $75, it was used in the purchase of the homestead described in the bill, under the direction of the complainant; and that the complainant could not thus dictate the control and investment of her money, and at the same time hold her husband responsible for its repayment to her, with interest; and that these facts show that, if it was ever intended as a loan to the husband, it was abandoned. That the notes claimed to have been given were utterly disregarded, and, under such circumstances, it is fair to hold that Dull was his wife's agent in all these investments; and, all these moneys going into the purchase of the homestead, the complainant can have no property in anything further than the homestead 40, and the other 40 should be made liable to the payment of defendant's claim against Joseph C. Dull. We do not view the testimony in this light. If the complainant's story is true, the husband was her debtor to the amount of the $250 and the $978, and the interest upon it for the years up to the time the deed was taken; and, as between the husband and wife, this was a sufficient consideration for the making of the deed, and the defendant cannot be heard to question it, unless complainant has by some act of her own led the defendant to give her husband credit which he could not have obtained except by...
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