Fowler v. Cornwell

• Decision Date: 05 June 1950
• Docket Number: No. 53,53
• Parties: FOWLER v. CORNWELL et ux.
• Court: Michigan Supreme Court

Page 73

43 N.W.2d 73

328 Mich. 89

FOWLER v. CORNWELL et ux.

No. 53.

Supreme Court of Michigan.

June 5, 1950.

Morrow & Kull, Detroit, for defendants and appellants.

Charles E. Moore, Grayling for plaintiff and appellee.

Elmer G. Smith, Gaylord, of counsel.

Before the Entire Bench.

BUTZEL, Justice.

Mabel C. Fowler brought an action in the circuit court for the county of Otsego, in chancery, against Virgil Cornwell, Eileen Cornwell, Bessie F. Bidwell and the Michigan Children's Aid Society to quiet title to several tracts of land in Bagley township, Otsego county, purchased on land contract by the plaintiff's deceased husband. She also asks that the contract be declared paid and that deeds be executed in accordance with its terms. The two last named defendants filed disclaimers. Virgil Cornwell and Eileen Cornwell answered the bill of complaint and filed a cross-bill praying that title be quieted in themselves. Defendants Cornwell have appealed from a decree granting plaintiff the full relief prayed for.

The 240 acres of vacant land involved in this action were owned by Robert King during his lifetime and upon his death intestate in August, 1920, title passed to Sarah King, his widow, and Robert K. Jardine, an adopted son, his sole heirs at law. C.L.1929, § 13440; Diel v. Diel, 298 Mich. 127, 298 N.W. 478. His estate, which was administered in Lapeer county, was solvent and included extensive real estate holdings including 136 different parcels in Otsego county and numerous others in Crawford and Lapeer counties. There was also a very appreciable amount of personalty. James H. Bidwell, brother of the widow, was appointed and served as administrator.

In September, 1920, Sarah King executed a power of attorney to J. H. Bidwell to 'make conveyances and do and perform every and any manner or kind of business whatsoever which I could myself lawfully do or which I can empower an attorney in fact to do for me, giving and granting unto J. H. Bidwell my said attorney, full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes, as I myself might or would do if personally present, with full power to (of?) substitution and without power of revocation hereby ratifying and confirm all that my said attorney or his substitute shall lawfully do or cause to be done.'

In September, 1920, Robert K. Jardine also executed a power of attorney to J. H. Bidwell to 'perform every and any manner or kind of business whatsoever in connection with the Robert King Estate which I could myself lawfully do or which I can empower an attorney in fact to do for me including conveyances of real estate, giving and granting unto J. H. Bidwell said Attorney, full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes, as I might or would do if personally present, with full power to (of?) substitution and revocation hereby ratifying and confirming all that my said Attorney or his substitute shall lawfully do or cause to be done.'

In August, 1921, Ethel Q. Jardine, Robert Jardine's wife, executed a power of attorney to J. H. Bidwell almost identically worded. All three powers were recorded in Otsego county in August, 1921.

It is quite apparent from the record that the purpose of these powers was to enable Bidwell to convey and otherwise dispose of the property in the estate without the necessity of obtaining a license from the probate court administering the estate. No such license was ever petitioned for or granted during the seven-year period of administration, although a major portion of the real estate that had been owned by Robert King was sold to others by Bidwell. All of the deeds introduced in evidence at the trial which had been executed by Bidwell in these transactions, with but one exception, named 'J. H. Bidwell, executor of the Robert King Estate' as grantor.

On December 13, 1921, a land contract was executed between 'J. H. Bidwell, executor of the Robert King Estate' as vendor and Harry N. Fowler as vendee, for the sale of the land involved in the instant litigation. One-quarter of the purchase price was immediately paid at the bank where the contract was delivered to Fowler, the balance being due in three equal annual payments. Fowler was given the right to possession and was to receive 'good and sufficient' warranty deed upon completion of payment. The contract was prepared by a real estate broker.

Fowler conveyed the property by warranty deed to one Minnie Rhodes in 1927 and she reconveyed it to him and his wife, the present plaintiff, later in the same year. The record indicates that at all times after entering into the land contract dominion of ownership over the land was exercised by Mr. Fowler. No testimony was introduced to controvert plaintiff's claim that payment of the taxes for the last 27 years was made by the Fowlers, and some of the evidence indicates clearly that these payments were not made by defendants' grantors. Since 1927 the Fowlers executed four different conveyances granting rights of way over the premises and made five oil and gas leases. Mr. Fowler died in 1947 and plaintiff, as survivor, claims ownership of the land in fee. The land remained unimproved during this entire period.

There is no deed on record from Bidwell or his principals to Fowler and the record is inconclusive as to whether one was ever executed and delivered. If such a deed existed it has been lost or misplaced. Plaintiff claims that the contract was fully paid and the evidence substantiates this assertion. In October, 1920, a detailed inventory of the assets of the Robert King estate was filed. Each of his numerous parcels of land, including those here involved, was carefully and separately listed. In the administrator's final account, filed and approved in 1928, and in the order assigning the residue, each parcel of real estate still retained was again individually listed, as was each land contract on which there was an unpaid balance. This particular property is not listed in the 1928 inventory as an asset of the estate, nor does the contract appear among those set forth as having an unpaid balance. Neither the contract nor the property are mentioned in a subsequent administration on reopening. The parcels omitted from Bidwell's final inventory are accounted for by large sums of money that were shown to have been received from land contracts and the sale of land. It is quite evident that were a balance owing on the Fowler contract the account, which is meticulous, would have so indicated. The fact that no attempt was ever made to forfeit the contract in the 27 years since it was executed is but a further indication that there was no default in payment and that the contract was paid.

Sarah King died testate in December, 1921, leaving all of her property, with the exception of some specified cash bequests. to J. H. Bidwell. Bidwell died in 1928 and neither this property nor an unpaid balance on the land contract was listed as an asset of his estate.

Defendant Virgil Cornwell is a real estate broker and resort operator and Eileen Cornwell is his wife. In 1945 Mr. Cornwell sought permission from Mr. Fowler to pasture his cow on the land. Subsequently, he became interested in acquiring title to the land made a search of the records. After Mr. Fowler's death in 1947, defendant Cornwell discovered that no deed had been recorded in fulfillment of the land contract. In 1948 defendants obtained a quitclaim deed from the Jardines, record titleholders of a two-thirds interest in the land, for $25. In the same year they paid Sarah Bidwell King, daughter and one of the heirs of J. H....