Lamore v. Frisbie

• Decision Date: 29 November 1879
• Citation: 42 Mich. 186,3 N.W. 910
• Court: Michigan Supreme Court
• Parties: LOUIS LAMORE v. HARRIET M. FRISBIE and others.

3 N.W. 910

42 Mich. 186

LOUIS LAMORE v. HARRIET M. FRISBIE and others.

Supreme Court of Michigan

November 29, 1879

Facts in this case considered, and held to establish the right of complainant to the land in question, and entitle him to a decree restraining defendants from prosecuting a suit in ejectment for its recovery, and compelling them to release their claims thereto.--(ED

Appeal from Berrien.

Edward Bacon, for complainant.

A.H Potter, C.B. Potter and Geo. S. Clapp, for defendants.

CAMPBELL, C.J.

Complainant filed his bill to stop an ejectment suit and compel a release from defendant of certain lands once owned by Elijah Pratt deceased, and now claimed by defendant under his will. Complainant sets up a purchase from Pratt during his life-time, and payment in full under it, partly before and partly after his death. When Pratt died, in 1852, he left a will devising and bequeathing his entire estate for life to his widow, Lydia Pratt, and after her death to their adopted children, Clarissa Frisbie and the defendant, who is her brother, and who obtained a quitclaim of her interest. Lydia Pratt died in 1863. The ejectment was begun in 1877, and the quitclaim made just before.

Elijah Pratt purchased the property in question in 1850 of Edward Hart, subject to a mortgage to one Voorhees, for $100. Complainant's claim is that in 1851 Pratt made an agreement in writing to sell the land to him for $800, of which $100 was paid down, and $150 paid June 1, 1852, and $200 and interest paid to Rufus W. Landon, an agent of Elijah Pratt, in June, 1852. The remainder was paid or secured May 1, 1854, partly by the Voorhees mortgage which Lamore had taken up, and partly by executing to Mrs. Pratt a mortgage which was afterwards paid to defendant, to whom she had assigned it. On this settlement, of which a full memorandum was made by Mr. Landon at the time, and given to Lamore, Mrs Pratt executed a warranty deed to Lamore for the expressed consideration of $800, and took back the mortgage just mentioned.

In the summer or fall of 1851, while Pratt was still in the place an arrangement was made for the convenience of an adjoining mill, whereby the owners--two men named Hipp--exchanged six acres or thereabouts of their land for an equivalent out of the land owned by Pratt. This fact is admitted, and complainant sets it up as an arrangement made with and for himself, while defendant denies that he had any interest.

At the time of the alleged contract Pratt and his family occupied the land, which exceeded in quantity a statutory homestead. After he went to California, in the fall of 1851, his wife moved back to a farm they had previously occupied in Pipestone, about two miles from the land in question, which which is in Berrien. Lamore went into possession in 1851, and has occupied or possessed it ever since.

Pratt's will, though admitted to probate, had appointed no executor, and no administration was ever had under it. Mrs. Pratt remained in the enjoyment of the estate until her death.

The defence, in addition to a general denial of the contract and of most matters set out by complainant, relied at the hearing on the homestead occupation as avoiding the contract, and also insisted that, assuming the memorandum of Mr. Landon to be true, the contract was made on Sunday, and a considerable payment made on another Sunday, which, it is claimed, avoided them. It is also insisted that Lamore never owned any interest beyond the life estate of Mrs. Pratt, which ended in 1863. It is also claimed that the contract is not set up or proved with certainty.

With the exception of one or two minor...