Holmes v. Holmes

• Decision Date: 11 February 1902
• Citation: 89 N.W. 47,129 Mich. 412
• Court: Michigan Supreme Court
• Parties: HOLMES et al. v. HOLMES et al.

89 N.W. 47

129 Mich. 412

HOLMES et al. v. HOLMES et al.

Supreme Court of Michigan

February 11, 1902

Appeal from circuit court, Branch county, in chancery; George L Yaple, Judge.

Action by Nathaniel Holmes and others against Sarah E. Holmes and others. From a judgment for plaintiffs, defendants appeal. Modified.

Stewart & Bliss and Dallas Boudeman, for appellants.

John B Shipman and H. H. Barlow, for appellees.

MONTGOMERY J.

Complainants' grandfather died intestate, owning personal property valued at upwards of $168,000, and real estate valued at $25,000 leaving a widow, Mary Holmes, 77 years old, and four children. Upon a settlement of the estate, Mary Holmes transferred to the children all her interest, both real and personal, in the estate of her husband, and took in return four mortgages, one from each of the children, each 'to secure the payment of the sum of five thousand dollars, * * * the receipt whereof is hereby confessed and acknowledged, in manner following, to wit: Interest annually at seven per cent., payable subject to the order of Mary Holmes. This mortgage to become null and void at the decease of the said Mary Holmes.' Defendants contend that there was an oral understanding when these mortgages were made that the mortgagors should each pay an equal share of any money asked for by their mother under the mortgages. Defendant Sarah E Holmes, complainants' stepmother, is the only witness whose testimony tends to show such an arrangement, assented to by Mary Holmes; and she does not testify that Mary Holmes expressly assented to it, but says: 'She was present whenever the thing was talked over, and she seemed willing, but I don't remember any particular conversation they ever had in which she joined. Q. Or said anything about it at all? A. No, sir; but she acknowledged, of course, that she did it of her own free act, when she signed her rights away.' Each of the children paid their mother $26 a year on those mortgages. One receipt was introduced in evidence, reunning to John T. Holmes, complainants' father, stating the amount paid, and describing it as 'interest on his mortgage for 1895.' This receipt, it was testified, resembled in form other receipts, which had been lost or destroyed. After the death of John T. Holmes, intestate, Mary Holmes assigned the mortgage given by him, for the foreclosure of which this suit is brought, to complainants, his children by his first wife, evidently, as the testimony indicates, for the purpose of 'evening up' between the two sets of children. The assignment is of the obligation mentioned in the mortgage, 'and the moneys now due, and the interest that may hereafter grow due, thereon.' At the same time Mrs. Holmes receipted for interest to that date upon the three other mortgages. The indorsements, as well as the assignment, were without consideration. Defendants contend that the receipt introduced in evidence, together with the surrounding circumstances, including the receipting for accrued interest upon the other mortgages, and the parol testimony, show a gift to John T. Holmes of the unpaid interest on this mortgage up to January 1, 1896. Defendants further contend that the assignment was the result of undue influence, and that complainants, being tenants in common with defendants, could not acquire by gift an outstanding incumbrance, and hold it adversely to defendants.

1. The most liberal construction possible of this mortgage, in favor of the mortgagor, is that the mortgagee should have, during her life, as much of the accumulated interest as she desired. It follows that at the time of the assignment she was entitled to demand the accumulated interest, unless she had given it, or a part of it, to her son; and it follows from this that, if she chose, she might sell or give away her interest, instead of foreclosing. Such an oral understanding as defendants sought to show was at variance with the terms of the mortgages, which each gave the mortgagee the right to demand the interest to date at any time. Certainly, where the consideration for the mortgage, as it read, was, as in this case, much more than adequate, and where the mortgagee is not shown to have understood that anything else was intended, except by silent...