Finner v. Weilnau

• Decision Date: 24 July 1928
• Docket Number: No. 31,June Term.,31
• Citation: 243 Mich. 624,220 N.W. 669
• Parties: FINNER et al. v. WEILNAU et al.
• Court: Michigan Supreme Court

243 Mich. 624

220 N.W. 669

FINNER et al.

v.WEILNAU et al.

No. 31, June Term.

Supreme Court of Michigan.

July 24, 1928.

Appeal from Circuit Court, Monroe County, in Chancery; Jesse H. Root, Judge.

Suit by William Finner and another against George A. Weilnau and others. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

Argued before the Entire Bench.

Ralph S. Moore, of Detroit, for appellants.

Clayton C. Golden and James J. Kelley, both of Monroe, for appellees.

FEAD, C. J.

This case presents a close question of fact. On November 6, 1920, Marie Weilnau, since deceased, executed to the Southern Michigan Land-Lime Company, a partnership composed wholly or principally of her children and their husbands and wives, a 25-year lease for mining and removing marl from 11 acres of her land, on royalty of 25 cents per ton. The lessees conducted operations, built a shed 22 by 30 feet in size, and installed machinery therein. They accumulated a reserve stock of about 100 tons. In the spring of 1925 plaintiff Finner, looking to purchase a farm, came in contract with William Clime, a member of the marl partnership, and was shown the Weilnau farm, among others. Clime reported Finner's interest to David Weilnau, administrator of his mother's estate, and the latter, on June 10, 1925, wrote Finner, offering the farm of 151 acres for sale at $100 per acre, subject to tenant lease. Weilnau, as administrator, had leased the land for one year from March 1, 1925. Finner told Weilnau he would buy in accordance with the letter. Weilnau exhibited to Finner his mother's deed, insurance policies, tax receipts, and the farm lease, but did not show him the marl lease. He also furnished an abstract. Both parties were represented by attorneys in the subsequent transactions. The abstract needed correction in several particulars before it was acceptable. The marl lease was not discussed with the attorneys. On September 16, 1925, Weilnau, under order of the probate court, executed to plaintiffs an administrator's deed of the premises, subject to the tenant lease and with warranty against persons claiming ‘by, from or under me but against no other persons.’ The deed was recorded September 16, 1925.

Weilnau testified that he fully informed Finner of the marl lease before the purchase. Clime also said he told Finner about it when he first showed him the farm. Finner denied such information. Weilnau further said his attorney filed a document in the probate court referring to the marl lease, but a copy of the document does not appear in the record. The attorneys did not testify. Weilnau's excuse for not excepting the marl lease in the deed to plaintiffs was that he thought it was of record, and that he had no concern with it, as he had not executed it.

Plaintiffs make no claim of...