Hack v. Norris

• Decision Date: 12 October 1881
• Citation: 46 Mich. 587,10 N.W. 104
• Court: Michigan Supreme Court
• Parties: HACK and another v. NORRIS and another.

10 N.W. 104

46 Mich. 587

HACK and another v. NORRIS and another.

Supreme Court of Michigan

October 12, 1881

Upon a bill filed by the heirs of a deceased person to vacate and set aside a deed made by their ancestor upon the ground that at the time the same was executed, she was incompetent to make such conveyance, and that the same was procured through fraud, and also to vacate a deed made by the grantee in such conveyance to one who took with notice and without payment of consideration, a decree was made, from which no appeal was taken, setting aside such deeds, directing an accounting of rents and profits from the date of the first conveyance, and an ascertainment of amounts paid by defendants for taxes insurance, improvements, and necessary repairs from that time; interest to be computed with annual rests on balance found due complainants. The ancestor of complainants died about 16 months after the making of the deed by her, and more than six years prior to the time of filing the bill. Upon appeal from the decree made upon the coming in of the report of the commissioner, held, that, except as to matters of accounting, the first decree was final, and that the time from which defendants were to account was properly designated.

Appeal from the superior court of Detroit.

Charles M. Swift, for complainants.

Ward &amp Palmer, for defendants and appellants.

GRAVES J.

The material facts stated in the bill are in substance as follows: Margaret Hack being the wife of Jacob Hack obtained a decree of divorce from him in the circuit court for the county of Wayne about the year 1859, and thereafter intermarried with Leopold E. Taufkirch, and lived with him as his wife until her death. That said marriage was however void by reason of a prior and subsisting marriage of said Taufkirch. That said Jacob Hack and Margaret Hack are both dead, the latter having died on the twenty-sixth of March, 1870, and that complainants are their sole issue and the only surviving heirs at law as well of the one as of the other. That on or prior to November 17, 1868, the said Margaret was the absolute owner in her own right of lots 9 and 10 in block 4 of the western addition to the city of Detroit of part of the Cass farm and that said lots were worth about $10,000. That during the time she lived with Taufkirch he treated her with great brutality and held her under his absolute control. That his cruelty broke her down in body and mind and so completely that in July, 1868, she was attacked with softening of the brain and paralysis and became wholly insane and incompetent to transact business. That on said seventeenth of November, 1868, said Margaret was living on the premises with said Taufkirch, and that he then took advantage of her helplessness and incompetency and coerced her to join him in executing a warranty deed thereof to the defendant Norris upon a consideration as expressed of $6,500. That no part of said consideration was either paid to or received by her and that the deed was not her act and that the defendant Norris was acquainted with all the facts. That possession was taken soon after by him and has since been retained by him and the defendant Waterman. That the latter on the fifteenth of June, 1875, had full knowledge of the facts before mentioned affecting the validity of the transfer from said Margaret but nevertheless took a deed of the property from said Norris on that day. That complainants are informed that said Waterman paid nothing for said conveyance and received it merely for the purpose of facilitating a disposition by said Waterman (who is a real estate broker) for the benefit of Norris. That defendants have had the use and occupation since November 17, 1868, and have collected and received the rents amounting to a large sum and have not accounted therefor. That on the death of their mother the said Margaret the property descended to complainants. The statements to excuse delay and the claims made for relief need not be noticed.

Such is the case made by the bill. The only matters in the answer which are now material are the denial of incompetency of complainants' mother, the allegation that the deed to Morris was in pursuance of an arrangement between her and Taufkirch to provide her with a separate living, the averment that whatever equity the complainants may have had originally had been lost by their laches and that even if they should be held entitled to an accounting it ought not to be carried further back than six years next preceding the filing of the bill and in equity and justice should be confined to the six years next preceding the reference. The parties went into evidence at great length and on the nineteenth of November, 1880, the cause was heard on the merits. The court by a decree of that date declared that the deed of November 17, 1868, to Norris and the deed of June 15, 1875, from Norris to Waterman were void and ordered an accounting by the defendants of the rents, profits and income collected and received by the defendants since the seventeenth of November, 1868, and of the amount to which complainants were entitled for the use and occupation of the premises subsequent to the same date. The decree further required that the commissioner should ascertain the amount laid out by the defendants for taxes, insurance, improvements and necessary repairs and other disbursements if any during said time, and also that he should compute the interest upon the balance due at the end of each year in favor of complainants and the rents, profits and income over and above the amounts in such year expended for taxes, insurance and necessary repairs and improvements and other disbursements if any, at the rate of 7 per centum per annum compounded with annual rests to the date of the decree. All further directions were reversed.

This decree was not appealed from or otherwise disturbed. The parties acquiesced. It determined all matters except the equity reserved and such determination has come to be the law of the case. December 8, 1880, the commissioner filed his report. The parties waived the computation of interest directed by the decree and it was not made. The defendants filed nine exceptions, and on the fourth of January, 1881, a hearing was had on the report and exceptions and the court overruled the exceptions and confirmed the report except as found inconsistent with the final order then made. And the case is now before this court by appeal on the part of the defendants from this last order, a copy of which appears below. ^[*]

The first decree negatived the defence and by necessary consequence determined that complainants had not been guilty of any unconscionable laches or delay, and it decided further that the case made by the bill was established and that they were entitled to have the deeds set aside, to be put in possession and have an accounting. These matters are no longer open. They are beyond the power of this court. In view of the effect of that decree and of the state of the commissioner's report and the character and scope of the exceptions thereto and considering the shape and operation of the decretal order appealed from, there appear to remain only two subjects of inquiry: First, as to the right to carry the accounting back to November 17, 1868, the date of the conveyance by complainants' mother to defendant Morris; and, second, as to the right to allow interest. Neither party has contended for beginning the accounting from March 26, 1870, the time when complainants' mother died, and hence the time when their title accrued. Both sides have obviously declined to adopt that view.

The position taken and adhered to by complainants, and which the court in making the decretal order accepted, is, that the accounting should commence at the date of the conveyance to Norris, a time some 16 months prior to the acquirement of title by complainants. On the other hand the defendants claimed and still insist that it should begin not further back than six years preceding the reference or at the most six years preceding the filing of the bill. The parties are hence at variance as to which of these periods is the proper one; it being assumed obviously that one of them is so and that the date of Mrs. Hack's death ought to be excluded. And under these circumstances the court would naturally pause in any event before it would fix on this last-mentioned date as the proper limit. But whether embarrassment on this score might have arisen we think that the equities which spring from the circumstances are such as operate to refer the accounting to one of the periods contended for in argument and to show that the assumption that Mrs. Hack's death is not the proper time to...