Fischer v. Union Trust Co.

• Decision Date: 30 December 1904
• Citation: 138 Mich. 612,101 N.W. 852
• Court: Michigan Supreme Court
• Parties: FISCHER v. UNION TRUST CO.

101 N.W. 852

138 Mich. 612

FISCHER v. UNION TRUST CO.

Supreme Court of Michigan

December 30, 1904

Error to Circuit Court, Wayne County; George S. Hosmer, Judge.

Proceedings by Bertha Fischer against the Union Trust Company administrator of the estate of William F. Fischer, deceased. Judgment for plaintiff, and defendant brings error. Reversed.

On December 21, 1895, William Fischer, Sr., conveyed by warranty deed certain property in the city of Detroit to the claimant Bertha Fischer, his daughter, who had been incompetent for a number of years, and so remains, and is at present at the Retreat for the Insane at Dearborn. The deed was a warranty deed, in the usual form, with a covenant against all incumbrances, excepting two mortgages, which the grantor 'agrees to pay when the same become due.' The land described in the deed comprised the homestead where the father and daughter lived, and the adjoining lot, with the house thereon. Mr. Fischer, after signing and acknowledging it, handed it to claimant, saying, 'Here is a deed of the Jefferson and Larned street property.' He said it was a 'nice Christmas present.' She took it and read it. One of her brothers gave her a dollar, which she gave to her father, who took it. She then handed the deed to her brother Alexander, and asked him to take care of it. He put it in his safe, and did not record it until June 30, 1902, about a year after the grantor's death, and 6 1/2 years after its date. The reason given by the son for not recording is that there were unpaid taxes, in consequence of which, under the statute, it could not be recorded. After the delivery of the deed, both grantor and grantee continued to live together on part of the property so conveyed. Mr. Fischer continued until his death to manage and control it, and to receive the rents therefrom, just as he had done before the giving of the deed. During that time he took care of his daughter the same as before. At the time of the execution of the deed, the grantor was considered by his sons to be worth about $50,000. He had no debts except the two mortgages, one of $3,000 and the other of $5,000. If he was then worth that amount, the larger part of it was in some way disposed of in his lifetime. The $3,000 mortgage was foreclosed for nonpayment, and satisfied out of part of the property conveyed. The claim at bar is based upon this appropriation of her property to pay the mortgage.

Henry M. Campbell, for appellant.

Alfred J. Ducharme (John C. Donnelly, of counsel), for appellee.

GRANT, J. (after stating the facts).

1. The facts and circumstances of the delivery of the deed are not in dispute. Counsel differ only in the conclusion to be drawn from them. We think that the conceded facts show a delivery. After the deed was signed and acknowledged, the grantor made manual delivery of it to the grantee. She took it and handed it to her brother, evidently to be kept by him for her. The grantor reserved no control over it, and retained no right to withdraw or cancel it. He never attempted to. Under those circumstances the delivery was complete.

2. The meritorious question in the case is: Was the claimant in position to enforce the executory contract in the deed against her father while living, and to enforce it against his estate now that he is dead, or to recover damages at law for nonperformance? To say that the one dollar was the real or such valuable consideration as would of itself sustain a deed of land worth several thousand dollars, is not in accord with reason or common sense. The passing of the dollar by the brother to his sister, and by her to her father, was treated rather as a joke than as any actual consideration. The real and only consideration for the deed and the agreement therein contained, to pay the mortgages, was the grantor's love and affection for his unfortunate daughter, and his parental desire to provide for her support after he was dead. The consideration was meritorious, but is not sufficient to compel the performance of a purely executory contract. The deed was a gift, and the gift was consummated by its execution and delivery. The title to the land, subject to the mortgages, passed as against all except the grantor's creditors. The gift was expressly made subject to the mortgages, and coupled with it was a promise to pay them. This promise has no additional force because it is contained in the deed. It has no other or greater force than would a promise by him to pay mortgages upon her own land, or to pay her $8,000 in money, or his promise to her evidenced by a promissory note for a like amount, and given for the same purpose and the same consideration. 'The doctrine of meritorious consideration originates in the distinction between the three classes of consideration on which promises may be based, viz., valuable consideration, the performance of a moral duty, and mere voluntary bounty. The first of these classes alone entitles the promisee to enforce his claim against an unwilling promisor; the third is for all legal purposes a mere nullity until actual performance of the promise. The second, or intermediate class, is termed meritorious, and is confined to three duties of charity, of payment of creditors, and of maintaining a wife and children; and under this last head are included provisions made for persons, not being children of the party promising, but in relation to whom he has manifested an intention to stand in loco parentis in reference to the parental duty of making provision for a child. Considerations of this imperfect class are not distinguished at law from mere voluntary bounty, but are to a modified extent recognized in equity. And the doctrine with respect to them is that, although a promise made without a valuable consideration cannot be enforced against the promisor, or against any one in whose favor he has altered his intention, yet if an intended gift on meritorious consideration be imperfectly executed, and if the intention remains unaltered at the death of the donor, there is an equity to enforce it, in favor of his intention, against persons claiming by operation of law without an equally meritorious claim.' Adams' Eq. (8th Ed.) 98. This court held that a promissory note given by a father to his son, intended as his share of the estate, could not be enforced against the estate. Conrad v. Manning's Estate, 125 Mich. 77, 83 N.W. 1038. The opinion in that case, written by my Brother Moore, cites many authorities which need not be recited here. Duvoll v. Wilson, 9 Barb. 487, is exactly in point, both in the facts and conclusion reached. 'The consideration of natural love and affection is sufficient in a deed; but a mere executory contract, that requires a consideration, as a promissory note, cannot be supported on the consideration of blood or natural love and affection--there must be something more, a valuable consideration, or it cannot be enforced at law, but may be broken at the will of the party.' See, also, Pennington v. Gittings, 2 Gill & J. 208; West v. Cavins, 74 Ind. 265; Hadley v. Reed (Sup.) 12 N.Y.S. 163. The learned counsel for the claimant cite numerous authorities, but we do not think them applicable to this case. In Ferguson's Appeal, 117 Pa. 426, 11 A. 885, a father had deeded to his daughter a lot of land according to a plat which called for a street thereon. The rights of the grantee in the street were the subject of the suit, One of the defenses set up was, the conveyance was voluntary. To this contention the court replied that the conveyance was...