Freeman v. Freeman

• Decision Date: 05 January 1888
• Court: Michigan Supreme Court
• Parties: FREEMAN v. FREEMAN.

35 N.W. 897

68 Mich. 28

FREEMAN v. FREEMAN.

Supreme Court of Michigan

January 5, 1888

Error to circuit court, Clinton county.

William H. Freeman sued Richard Freeman on a judgment obtained against him in New York. Judgment for defendant, and plaintiff brings error.

O.L Spaulding and H. & H.E. Walbridge, for appellant.

Daboll & Brunson, for appellee.

MORSE J.

The parties to this controversy are brothers residing in the county of Clinton. The plaintiff sued defendant in the circuit court for that county upon a judgment obtained in the state of New York against the defendant, in favor of Guy H McMaster and J. Foster Parkhurst. The judgment was rendered September 12, 1876, and assigned to plaintiff May 1, 1886. Suit was commenced before the outlawry of the judgment. The defense to this judgment was that, at the time the plaintiff acquired it, he was acting as the agent of defendant to sell certain real and personal property, pay the defendant's debts, and account to him for the balance, if any. The evidence introduced by the defendant to substantiate this defense tended to show that when the defendant, in the year 1876, left the state of New York and came to Michigan, he left in the care of the defendant a large amount of real and personal property. There were various mortgages upon the parcels of land owned by defendant, and, in order to cut off a dower-right in dispute, it was agreed that the plaintiff should procure the title of these lands in himself by having the mortgages foreclosed, and bidding in the title. That, in pursuance of such agreement, the plaintiff did thus obtain title in himself to 318 acres of land. That he sold all of it except 97 1/2 acres, which he retains; and out of the proceeds of such sales, after paying the debts of defendant, has a large amount of money in his hands belonging to defendant, over and above the amount of this judgment. To rebut this testimony, the plaintiff showed that November 7, 1885, the defendant in this suit filed a bill in the circuit court for the county of Clinton in chancery for an accounting and settlement of all differences between himself and the plaintiff, including the transactions in the state of New York, as well as matters of difficulty between them in Clinton county. It is claimed, also, that the differences in Michigan grew out of the New York affair. November 16, 1885, there was a settlement between the parties, which was evidenced by the following writing:

"Memorandum of agreement made and entered into this sixteenth day of November, A.D.1885, by and between William H. Freeman, party of the first part, and Richard Freeman, party of the second part, witnesseth, that the parties hereto, being desirous of settling all matters of difference between them, of whatever name or nature, have agreed as follows: Party of the first part hereby agrees to give party of second part a good and sufficient quitclaim deed of the following described premises: The south fifty-eight acres of the north-west quarter of section four, and the east half of the south-east quarter of the north-west quarter of section five, all in the township of Olive, Clinton county, Mich. The party of the second part hereby agrees to give party of first part a mortgage for two thousand dollars on the above-described premises, payable as follows: Five hundred dollars on or before two years from date, five hundred on or before four years from date, five hundred on or before six years from date, five hundred on or before eight years from date, with interest at eight per cent., payable annually on all sums unpaid. If party of second part should wish to make any one of the payments before due, he should give sixty days' notice to party of first part. Party of second part also agrees to deed, or cause to be deeded, to party of first part, by good and sufficient deed, the following described premises: The west half of the south-east quarter of section twenty-six in Bingham, Clinton county, Mich. Party of second part to pay the taxable costs in the case of Alice L. Freeman vs. Wm. H. Freeman and Wm. A. Freeman; also the case of Wm. A. Freeman vs. Richard Freeman, before

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