Lariverre v. Rains

• Decision Date: 06 April 1897
• Citation: 112 Mich. 276,70 N.W. 583
• Court: Michigan Supreme Court
• Parties: LARIVERRE ET AL. v. RAINS ET AL.

70 N.W. 583

112 Mich. 276

LARIVERRE ET AL. v. RAINS ET AL.

Supreme Court of Michigan

April 6, 1897

Appeal from circuit court, Chippewa county; Joseph H. Steere, Judge.

Suit by Peter Lariverre and Joseph Lariverre, infants, by next friend, against Hoel D. Rains and another, to remove a cloud from title, and to redeem from a mortgage. From a decree dismissing the bill, complainants appeal. Reversed.

John W. Shine, for appellants.

George A. Cady, for appellees.

MOORE J.

This case involves the construction of a paper reading as follows "Memorandum of an agreement made and entered into, this 8th day of March, A. D. 1883, by and between Mrs. Julia Lariverre White, of Sault Ste. Marie, Chippewa county, in the state of Michigan, of the first part, and Edward White, her present husband, and Joseph Lariverre, her son, and her grandchildren, Joseph and Peter Lariverre, children of her said son, Joseph Lariverre, and his heirs, of the second part, witnesseth that the said party of the first part, for valuable consideration, and for love and affection for the said parties of the second part, and because she hath heretofore transferred to her other heir at law, Mrs. John Roberts, her proportion of the real estate of which she was possessed, hereby expressly agrees to and with the said parties of the second part to give them the real estate now owned by her and as follows: First. The use and occupancy, as long as he shall live, in case he shall live with her as long as she shall live and sees fit to occupy the same as a residence and home, the west half of that part of private land claim No. 117, in said village of Sault Ste. Marie, now owned by her. Second. And the use and occupancy of the east half of said claim during his life, providing he sees fit to use and occupy the same so long as a home and residence, she hereby gives to the said Joseph Lariverre, her son. Third. And hereby agrees, and by these presents conveys absolutely, subject to the above conditions, all of the said private land claim one hundred and seventeen, now owned by her, to her said grandchildren, Joseph and Peter Lariverre children of the said Joseph, her son, or to his heirs; it being expressly understood that, if her said son Joseph shall have more children at the time of his death, they shall share and share alike the said property. It is further understood that in case of her death, and the death of her said husband before the death of her said son Joseph, then he, her said son Joseph, shall have the use and occupancy during his life of both of said parts of said claim on the terms and conditions above specified, to wit, to be used and occupied by him as a house and residence. It being expressly understood and agreed that the right to use and occupy, as above stated, is intended to be a life interest, and not transferable so far as the said Edward White and Joseph Lariverre, Sr., are concerned. It is also agreed that it is not necessary for the heirs of the said Joseph Lariverre to sign this agreement; that this instrument is to be considered and is understood to be an absolute conveyance to them, on the conditions and restrictions above herein stated, of the said private land claim one hundred and seventeen. In witness whereof the parties have hereto set their hands and seals this 8th day of March, A. D. 1883." This paper was signed by Julia Lariverre White, Edward White, and Joseph Lariverre. It was witnessed by three witnesses. There was no certificate of acknowledgment attached to it, but it was recorded, in the record of deeds and also in the record of contracts, in the office of the register of deeds, the day it was drawn. At the time the paper was drawn all of the persons whose names appear in it resided upon the land. In January 1889, Julia L. White deeded her son, Joseph Lariverre, the west 48 feet of said land. January 24, 1889, Joseph Lariverre deeded the 48 feet to Mary B. Doyle. January 28, 1889, Julia L. White deeded the west 50 feet of the land to Mary B. Doyle. The complainants, Joseph Lariverre, Julia L. White, and her husband were then all living on the land. When the above conveyances were made, Mrs. Doyle took and retained possession of the land until September, 1890, when she conveyed them to the defendants. November 22, 1878, Julia Lariverre White made a mortgage for $50 to Mr. Trempe on land which is claimed to be the land involved in this litigation. The description reads: "All of private land claim (not heretofore deeded) number one hundred and seventeen, in the village of Sault Ste. Marie," etc. This mortgage was recorded in a book having a printed form, and, to make the record conform to the original mortgage, a pen was drawn through several lines of the printed matter. Some words usually employed in the power of sale contained in a mortgage were left out. That portion of the mortgage reads as follows: "Provided always, and these presents are upon this express condition, that if the said party of the first part shall and do well and truly pay, or cause to be paid, to the said party of the second part, the sum of fifty dollars and interest, on or before the 22d day of November, A. D. 1878, or of the interest thereof, or any part of said principal or interest, at the time, in the manner, and at the place above limited and specified for the payment thereof, then, and in such case, it shall and may be lawful for the said party of the second part, his heirs, executors, administrators, or assigns, and the said party of the first part does hereby empower and authorize the said party of the second part, his heirs, executors, administrators or assigns, to grant, bargain, sell, release, and convey the said premises, with the appurtenances, at public auction or vendue, and on such sale to make and execute to the purchaser or purchasers, his heirs and assigns, forever, good, ample, and sufficient deed or deeds of conveyance in law,...