CHAMPLIN
J.
The
bill in this case is filed to remove a cloud upon
complainants' title. Clarissa Hill is the widow, and the
other complainants are children, of Oliver C. Hill, who died
on the thirteenth day of February, A.D.1883. The defendant is
a son of the deceased. The bill of complaint states that
Oliver C. Hill was, at the time of his death, the owner in
fee of the S.E. 1/4 of the N.E. 1/4 of section 19, in
township No. 4 S., range No. 9 W., and was in the actual
possession thereof at the time of his death, and that he was
also the owner in fee of the N.E. 1/4 of the S.E. 1/4 of
section 4, in township 21 N., range 10 W., which is improved
land, not in the possession of said Robert F. Hill or any
other person; that they are in the actual possession of the
first-described parcel, and claim to be the legal and
equitable owners of both parcels, as heirs at law of said
Oliver C. Hill, deceased; that defendant, Robert F. Hill, is
insolvent, and was indebted to said Oliver C. Hill at the
time of his death in the sum of more than $5,000, for which
he had given his promissory notes to said Oliver C. Hill
dated April 4, 1882.
We
quote the statements contained in the tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth
twenty-first, and twenty-second paragraphs of the bill
entire, as follows:
"Tenth.
And your oratresses further show that the said Robert F.
Hill has in his possession a certain pretended deed,
bearing date the said fourth day of April, A.D.1882, and
purporting to be executed by the said Oliver C. Hill,
deceased, and grantor to the said Robert F. Hill as
grantee, and purporting to convey from the said Oliver C.
Hill to the said Robert F. Hill both of the aforesaid
pieces or parcels of land, and the said Robert F. Hill sets
up a claim that the said paper writing is the deed of the
said Oliver C. Hill, and pretends that on the said fourth
day of April, in the year 1882, the said Oliver C. Hill,
deceased, sold both of the said pieces or parcels of land
to him, the said Robert F. Hill, for the consideration of
about five thousand dollars, and that thereupon the said
Oliver C. Hill made and executed the said pretended deed
and delivered the same to him, the said Robert F. Hill, and
thereby conveyed to him, the said Robert F. Hill, both the
pieces or parcels of land aforesaid, and by virtue thereof
the said Robert F. Hill now claims and pretends to own both
of the pieces or parcels of land aforesaid.
"Eleventh.
Whereas, your oratresses expressly charge that the said
claims and pretenses of the said Robert F. Hill are false;
that the said pretended deed is not the deed of the said
Oliver C. Hill, deceased; that the same was never made or
delivered by him; that the said Oliver C. Hill, deceased,
never sold nor conveyed the said pieces or parcels of land,
or either of them, to the said Robert F. Hill; and that the
said pretended deed is false, fraudulent, and invalid, and
a cloud upon the said title of your oratresses to the said
pieces or parcels of land, and a fraud upon their rights
thereto as the homestead as aforesaid of your oratrix,
Clarissa Hill.
"Twelfth.
And your oratresses expressly show and charge, upon
information and belief, that on the said fourth day of
April the said Robert F. Hill was, and for a long time
prior thereto had been, utterly insolvent, and not
possessed of property sufficient to pay his debts to the
said Oliver C. Hill, deceased, as he, the said Oliver C.
Hill, deceased, then well knew; and also that the said
Robert F. Hill was then wholly unable to buy or pay for the
said pieces or parcels of land, and the said Oliver C. Hill
then already held promissory notes made by the said Robert
F. Hill, as aforesaid, for sums aggregating many thousands
of dollars; and also that the said Oliver C. Hill
continued, until the time of his death as aforesaid, in the
actual possession and occupation of the
piece or parcel of land first above described, claiming to
own the same, and using and dealing with the same as owner;
that the said Robert F. Hill never, until after the death
of the said Oliver C. Hill, set
up any claim to the said pieces or parcels of land, or
recorded the said pretended deed, but on the contrary
thereof, in various ways and at different times after the
said fourth day of April, admitted and acknowledged the
title of the said Oliver C. Hill to the said pieces or
parcels of land; and although in great financial
embarrassment, in great need of money, and making great
efforts to raise money, the said Robert F. Hill never, to
the knowledge or belief of your oratresses, offered or
attempted to dispose of or incumber the said pieces or
parcels of land or either of them, although, as your
oratresses are informed and believe, frequently attempting
without success to borrow money, because he, the said
Robert F. Hill, had no security to give therefor.
"Thirteenth.
And your oratresses further show that the said Robert F.
Hill sometimes pretends that he paid for the said pieces or
parcels of land by making and delivering to the said Oliver
C. Hill the promissory note mentioned in the above
paragraph of this bill of complaint, marked (5,) whereas,
in truth and in fact, the said promissory notes were given
by the said Robert F. Hill to the said Oliver C. Hill,
deceased, for debts which the said Robert F. Hill was then,
and for a long time previous thereto had been, owing to the
said Oliver C. Hill, deceased.
"Fourteenth.
Your oratresses further show that after the death of the
said Oliver C. Hill, deceased, the said Robert F. Hill at
first falsely pretended that the said pretended deed was a
conveyance to him, the said Robert F. Hill, of all the real
and personal property of which the said Oliver C. Hill,
deceased, died possessed, and tried to induce your
oratresses to settle with him, the said Robert F. Hill,
upon that basis.
"Fifteenth.
And your oratresses Elizabeth Low, Sarah M. Leavins, and
Frances Hill, upon their own knowledge, and your oratresses
Julia A. Foster and Clarissa Hill, upon information and
belief, show that on or about the twentieth day of February
last the said Robert F. Hill admitted to your oratresses
Elizabeth Low, Sarah M. Leavins, and Frances Hill that the
said pretended deed had been made in trust for your
oratresses and to avoid partition proceedings.
"Twenty-first.
Your oratresses therefore pray that the said pretended deed
may, by the decree of this honorable court, be adjudged and
decreed to be set aside, annulled, and held for naught, and that said Robert F. Hill may be decreed as
aforesaid to deliver the said deed up to be canceled as a
cloud upon the title of your oratresses to the said pieces
or parcels of land, and that the said Robert F. Hill may,
by the decree of this honorable court, be required and
compelled to execute and deliver to your oratresses such
deed or deeds of conveyance or other instruments as may be
necessary to free, clear, and remove from the title of your
oratresses to the said pieces or parcels of land the cloud
caused and produced by the said pretended deed.
"Twenty-second.
And that the said Robert F. Hill, his counselors,
attorneys, solicitors, trustees, agents, and servants, and
each and every one of them, may be enjoined and restrained
from selling, assigning, transferring, incumbering, or in
any manner disposing of or intermeddling with the said
described pieces or parcels of land, or either of them, or
the title thereto, or the quiet and peaceable possession
thereof of your oratresses, or either of them, or of any
person holding, by, through, or under them, or either of
them, and from commencing or prosecuting any suit or
proceeding at law to obtain the possession of the said
pieces or parcels of land, or either of them, or any part
thereof; and from causing or permitting the said pretended
deed to be recorded in the office of the register of deeds,
either for the said county of Kalamazoo or for the said
county of Wexford. And that your oratresses may have such
further relief or may have such other relief in the
premises as the nature of their case may require, and as
shall be agreeable to equity and good conscience."
The
answer of defendant, which was without oath, was as follows
"This
defendant, reserving to himself all right of exceptions to
the said bill of complaint, for answer thereto says that he
denies that the said Oliver C. Hill, deceased, occupied the
south half of the north-east quarter, and the north-west
quarter of the south-east quarter, of section nineteen, in
town four south, of range 9 west, as a homestead, or that the
said Clarissa Hill had any homestead right therein at the
time of his death, or that the said complainants, or any or
either of them, have any right, title, or interest in or to
said premises, but, on the contrary, that this defendant has
the full legal and equitable title thereto. And the said
defendant, further answering, says that he denies that he is
indebted to said estate of Oliver C. Hill, deceased, but
that, on the contrary, said estate is indebted
to this defendant, and that defendant was not, on the fourth
day of April, 1882, indebted to the said Oliver C. Hill to
the amount of five thousand dollars, but admits that he was
indebted to the said Oliver C. Hill, on the fourth day of
April, 1882, in the sum of four thousand three hundred and
fifty dollars, being the consideration for certain real
estate conveyed to defendant by said Oliver C. Hill, which
notes were secured by a real-estate mortgage upon the
property so conveyed as aforesaid, and were in the case of
the...
