Jeffrey v. Hursh

• Citation: 58 Mich. 246,25 N.W. 176
• Court: Supreme Court of Michigan
• Decision Date: 28 October 1885
• Parties: JEFFREY and others v. HURSH and others.

25 N.W. 176

58 Mich. 246

JEFFREY and others v. HURSH and others.

Supreme Court of Michigan

October 28, 1885

Error to Bay.

Spaulding & Cranson and Hatch & Cooley, for plaintiffs.

Brown &amp Leaton, John Atkinson, A. McDonell, and Fancher & Dodds Bros., for appellants.

CHAMPLIN J.

Plaintiffs as heirs at law of John Jeffrey, deceased, brought ejectment to recover possession of the W. 1/2 of the N.E. 1/4 of section 22, township 14 N., range 4 E., in Isabella county. They claim title in fee. On the tenth day of March, 1856 John M. Hursh, now deceased, acquired the title in fee-simple to the land in question by patent from the United States, and sometime afterwards gave a mortgage thereon to one Ganson, and another to John Jeffrey. At this time the defendant Elizabeth Hursh was the wife of John Hursh, the mortgagor, and joined with him in the execution of the mortgages. Afterwards, and on the twenty-ninth day of March, 1871, John M. Hursh, by warranty deed, conveyed the land to Wesley Winters, and he on the same day conveyed by deed the land to the defendant Elizabeth Hursh. April 9, 1872, Elizabeth Hursh executed a power of attorney to her husband, John M. Hursh, by which she empowered him "to sell and convey all lands that I am possessed of in the counties of Clare and Isabella, to receive payments for the same at any price or prices that to my said attorney may seem meet and just, and to execute and deliver such deed or deeds of conveyance in my name as may be necessary to convey the title to such land in fee." On the twenty-third day of November, 1872, John M. Hursh executed a warranty deed of the land in question, together with about 560 acres of lands belonging to himself, to John Jeffrey, the plaintiffs' ancestor. In this deed he purported to act for himself personally and as the attorney in fact of Elizabeth Hursh. It contains a covenant that the premises are free from all incumbrances, and also of warranty against all lawful claims.

The defendants claim that this instrument was not intended as an absolute deed, but that it was either a mortgage or a conditional sale; and in either case is void as to the land of Elizabeth Hursh, for the reason that the power of attorney from her to John M. Hursh did not authorize him to make either a mortgage or conditional sale of her land. The evidence adduced in support of defendants' claim consisted (1) of a bond bearing the same date as the deed, executed by Jeffrey to John M. Hursh, conditioned that he, Jeffrey, on the receipt of $3,514.46, being the same amount as the consideration named in the deed, with interest thereon at the rate of 10 per cent. from that date, to be paid on or before one year to him by said Hursh, would make, execute, and deliver to the said John M. Hursh, his heirs or assigns, or to whomsoever might be named by said Hursh, "a good and sufficient deed of conveyance of such interest as I now have acquired of said Hursh, of the following described lands situated in Isabella county and state of Michigan." [Here follows a description of the land in question, and a large number of other descriptions, containing over 500 acres in all, and being the same lands described in the deed and no others.] (2) Of the testimony of witnesses as to what occurred at the time the papers were executed, and the admission of Jeffrey; and (3) of the fact that Mrs. Hursh had always remained in the possession of the land in question, claiming it as her own, and paying the taxes thereon, and that Jeffrey never interfered with the possession of defendant Hursh, and never sought in any way to acquire possession thereof.

John M. Hursh and John Jeffrey had both died before this suit was commenced. The only living witness who has testified to what occurred at the time the papers were executed is William E. Winton. He was the attorney of John Jeffrey in his life-time, and after his decease he was the attorney of Mrs. Jeffrey, who was appointed administratrix of the estate of John Jeffrey, and who was also guardian of the plaintiffs in this suit. He had assisted in one of the trials of this case at the circuit and addressed the jury on behalf of the plaintiffs. He was judge of probate of Gratiot county, in which the estate of John Jeffrey was administered, and was exercising that office at the time the papers in controversy were drawn. John Jeffrey died about a year and a half after the deed and bond were executed. After Mrs. Jeffrey was appointed administratrix, Mr. Winton, acting as the judge of probate and her legal adviser, at a time when the occurrence was comparatively recent, advised Mrs. Jeffrey that the deed in question was not in fact an absolute deed, but a mortgage, and, under his advice, she treated it as a mortgage, and sold and assigned it as such to one Scriven, who brought a suit to foreclose it as a mortgage. She also treated it as a mortgage security in her account of the estate before the probate court, of which Winton was judge. After an interval of 12 years from the execution of the deed and mortgage in his presence, he testifies as to what occurred on that occasion as follows:

"On the twenty-third day of November, 1872, Mr. Jeffrey, in company with John M. Hursh, came into the probate office, where I was alone. After the introduction of Mr. Hursh, Mr. Jeffrey said that Mr. Hursh had come to sell his wife's farm, with a power of attorney, and wanted me to examine the power of attorney and see if it was sufficient to vest him with such power. I examined it, and told Mr. Jeffrey that I thought it was sufficient. Then Mr. Jeffrey went on and made a computation of the amount that was due him on the mortgage, and perhaps some other papers. My mind is not clear enough now to remember how many papers he had, but he had a mortgage, and I can recollect some notes; but whether there were any more notes than were secured by the mortgage I cannot state positively, and the amount of a mortgage that some proceedings had been taken to foreclose that was a lien on this same land, this land in controversy. Having ascertained the amount that was due Mr. Jeffrey, and also on the other mortgage, Mr. Hursh mentioned a certain amount of money over and above. Mr. Jeffrey says to Mr. Hursh: 'That eighty is not worth that amount.' The amount he wanted, together with this, amounted to over three thousand dollars. If my recollection serves me right, he said it was not worth that money. Question. Who did? Answer. Mr. Jeffrey. Mr. Hursh says, 'I have some other land that I will put in, together with the eighty in controversy, that will satisfy you for the amount of money I want.' Mr. Jeffrey says: 'These are Indian lands about which there is considerable question nowadays about their title. I don't consider them of much value.' Mr. Hursh says, 'I will put in enough so I think you will feel satisfied;' and he put in the amount that the deed describes. Q. Did Mr. Hursh make any remark about the title in that connection? A. He said there was some question about it; but he thought perhaps some of them might be good. After he put in the amount of land he spoke of, it seemed to meet the minds of both parties. I then drew the deed, describing the lands as set forth in the deed. Q. [Handing the witness the instrument from Hursh and wife to Jeffrey, hereinbefore set out.] Is that the deed you drew at that time? A. That deed is in my handwriting. I think that is the identical deed. I drew the deed and counted out the money. Mr. Jeffrey laid down the money to see if it was correct. I counted out the money for Mr. Hursh, after delivering the deed, and Mr. Hursh executed it in the manner in which it shows here for itself. I would not from memory know who was the other witness unless I saw it on here. He was a man that was about the court-house. He was probably called in to do it, for I don't remember of his being there, but he signed that. Q. What was the amount of the claims Jeffrey had against Mr. Hursh, as near as you can recollect? A. It is a matter of recollection. I have the impression that the amount of the claim ran up somewheres perhaps to $1,800; might go over and might fall short. That included both mortgages."

The witness further testified that the amount of money named in the consideration of the deed was the exact amount of the Ganson mortgage, the mortgage due Jeffrey, and the money he got over and above those mortgages at the time. He also testified as follows "Question. After you had drawn the deed, and up to the time of drawing the deed, was there anything said about a contract or bond back? Answer. No, sir. Q. Was there anything said about it till after the execution and delivery of the deed? A. No, sir Q. Was there anything said about it until after the payment of the money by Jeffrey to him? A. No, sir. Q. State just what next occurred after the money was paid and the deed delivered. A. I think after the deed was drawn and the money was delivered, I...