Fox v. Mitchell

• Citation: 302 Mich. 201,4 N.W.2d 518
• Decision Date: 10 June 1942
• Docket Number: No. 29.,29.
• Parties: FOX v. MITCHELL.
• Court: Michigan Supreme Court

302 Mich. 201

4 N.W.2d 518

FOX

v.MITCHELL.

No. 29.

Supreme Court of Michigan.

June 10, 1942.

Suit by Raymond A. Fox, administrator with the will annexed of the estate of Lydia Mitchell, deceased, against Emma Rose Mitchell, to foreclose a mortgage, and cross-complaint by Emma Rose Mitchell to discharge the mortgage. From a decree for plaintiff, defendant appeals.

Reversed and decree discharging mortgage entered.Appeal from Circuit Court, Wayne County, in Chancery; George B. Murphy, Judge.

Before the Entire Bench.

Daniel W. Ross and Walter M. Nelson, both of Detroit, for appellant.

Raymond A. Fox, of Detroit, for appellee.

BUTZEL, Justice.

Raymond A. Fox, administrator with the will annexed of the estate of Lydia Mitchell, deceased, made the following allegations in a bill of complaint filed by him as plaintiff. Lydia Mitchell, a resident of Ossett, County of York, England, died on January 30, 1939, leaving a will which was duly probated in England and ancillary administration whereof was granted to plaintiff by the probate court for the county of Wayne. She left an estate in the county of Wayne, State of Michigan, consisting of a promissory note executed by defendant Emma Rose Mitchell and secured by a second mortgage upon a 20-family apartment house in the city of Detroit, upon which note there is a balance due of $6,860. In September, 1938, Emma, learning that Lydia, then 76 years of age, was seriously ill and under disabilities that prevented her from transacting business, went to England where she found Lydia on her death bed too sick and feeble to manage her own affairs and with no hope of recovery, and by means of insistence, domination, deception and fraud, Emma secured access to Lydia's legal documents and papers and thus obtained possession of the promissory note. Emma has refused to make further payments on the note or to surrender it and she is still indebted for the balance of $6,860 due and unpaid on the note.

Lydia left surviving her as sole heir a daughter, Agnes Mitchell, who is of subnormal intellect, unable to support herself, and who was dependent upon her mother for support. Such note and mortgage constitute substantially the only asset of the estate. Without them there would be nothing left in the estate to take care of the daughter. Plaintiff seeks foreclosure of the mortgage. There are attached to the bill of complaint the last will of decedent, in which she bequeathes to Agnes all her ‘personal estate,’ and a copy of the note for $8,000, the original of which, plaintiff concedes, is not in his possession.

Defendant in her answer admits the allegations in regard to the language of the last will of decedent, the execution of the note secured by the second mortgage and the further fact that $1,140 has been paid on the note, thus leaving a balance of $6,860 were it not, as defendant claims, that the note was fully paid and so marked and surrendered, and the mortgage thereby equitably discharged. She denies any fraud or deception on her part in securing the note with the language denoting payment endorsed thereon. She further denies that decedent was seriously ill at the time of the transaction or had been bedridden for months prior thereto. She admits that the daughter of decedent was a person unable to support herself, but denies that the note and mortgage constitute the only asset of the estate or that without them the estate would be so impoverished that the support of the daughter would be endangered.

Defendant, as cross-plaintiff, also makes the following allegations. Decedent, a resident of England, had two sons and a daughter. One son, Harry, emigrated from England to the United States, resided for a substantial period in the city of Pontiac, Michigan, where he became mayor. He married cross-plaintiff in 1914. He died on October 10, 1936, leaving cross-plaintiff as well as his mother and sister Agnes surviving him. He was engaged in the real estate and building and other business, was a man of means and by his efforts created an estate for his mother, who continued to live in England, but, throughout defendant's married life, made seventeen trips from England to visit the home of Harry Mitchell. Defendant had also visited decedent in England once every year, and the relations between them were most cordial and affectionate. Upon the death of Harry Mitchell, defendant did borrow from said decedent on a note secured by a second mortgage a sum of money which had come to said decedent through the generosity of defendant's husband. After payments were made on the note, there was a balance left of $6,860. The friendly relations between Emma and Lydia continued after Harry's death, and in September, 1938, defendant went to England to visit Lydia, at which time the latter herself voluntarily broached the subject of the settlement of her entire estate. Approximately two years previous to such visit Lydia Mitchell had made a last will and testament leaving all of her estate to defendant, but, when defendant went to England in 1938, decedent on September 26, 1938, marked the promissory note paid and delivered it to defendant and stated that as soon as she could secure the real estate mortgage, which she did not have at her home and which she would send for, she would mail it to defendant; eighteen days later she executed a last will revoking her former will and leaving the residue of her property to her daughter Agnes, which residue was ample to care for Agnes and consisted of a house and lot and a bank account of several thousand dollars. On September 24, 1938, decedent wrote to plaintiff (now the administrator), who had been her counsel for the collection of the note, stating that she no longer required his services as an attorney and thanking him for past favors. It was due solely to an oversight that decedent did not forward the mortgage with a discharge to cross-plaintiff, who claims that the mortgage was equitably discharged. She asks that the court enter a decree discharging the mortgage.

Plaintiff, as cross-defendant, in his answer to the cross-bill reasserts his former charges and alleges that the only assets left in the estate with the exception of the note are of but little value and insufficient to support Agnes Mitchell. He admits that he received a letter, allegedly written by decedent, whom he then represented in the collection of the note, informing him that his services were no longer required but he neither admits nor denies that decedent wrote the letter and leaves defendant to her proofs.

At the hearing of the case there was no evidence presented to substantiate plaintiff's charges of fraud, nor was there any showing that Harry Mitchell, defendant's husband, now deceased, gave the mortgaged property to decedent, nor is there any proof showing of what decedent's estate consists. In fact, the entire testimony is very meager. It was shown that the title to the apartment house was vested in decedent in 1936, while she was living in Detroit, that during the last illness of Harry Mitchell, decedent conveyed the property to a third person who immediately conveyed to Lydia, Harry and Emma Mitchell as joint tenants with sole right of survivorship and not as tenants in common. Harry Mitchell was a very sick man at the time and he died shortly thereafter in California, where he went in a futile effort to recover his health. Shortly thereafter defendant, who had acquired possession of the deeds, recorded them. Decedent thereupon filed a bill in equity against defendant and the party to whom she had conveyed the title for the purpose of reconveyance to the three joint tenants. Decedent did not allege any fraud practiced on her in securing the deeds but she claimed that there was an oral agreement that they were not to be recorded during the lifetime of decedent. She did allege, however, that defendant had taken possession of the property and appropriated to herself all the rents therefrom. Very shortly thereafter, on December 30, 1936, this suit was settled by an agreement whereby Lydia conveyed to Emma all her right, title and interest in the property. Emma paid her $2,000 in cash and gave her the note for $8,000 secured by the mortgage. The note was payable in monthly installments of $60.

Mr. Frederick, an attorney who acted for Lydia in filing the bill to set aside the deeds, testified that Lydia's sole concern was a desire to have a source of income from the property during her lifetime, and it was at the suggestion of Emma that monthly payments of $60 instead of $50 were provided for in the note, and after the settlement had been reached the two women appeared to be very friendly. Afterwards they made a social call on him and stated that they were going to take a trip together to Florida. On February 15, 1937, after all of this difficulty,...