Larzelere v. Starkweather

• Decision Date: 09 January 1878
• Citation: 38 Mich. 96
• Court: Michigan Supreme Court
• Parties: Jacob S. Larzelere Et Al. v. John Starkweather and Elizabeth A. Larzelere

38 Mich. 96

Jacob S. Larzelere Et Al. v. John Starkweather and Elizabeth A. Larzelere

Supreme Court of Michigan

January 9, 1878

Submitted October 3, 1877; October 4, 1877

Appeal from Washtenaw.

Bill to vacate a deed and mortgage and compel the release of certain lands. Complainants appealed. The facts are in the opinion.

Decree affirmed with costs.

Uhl & Crane and Norris & Uhl for complainants. An administrator's sale is void if made after the statutory time allowed for settling the estate (Heath v. Wells, 5 Pick 140; Hudson v. Hurlbut, 15 Pick. 423; Lamson v Schult, 4 Allen 359; Hoffman v. Beard, 32 Mich 219) or if the administrator is interested in it (Terry v. Tuttle, 24 Mich. 206;) Cout v. Cout, 63 III. 73; Hoffman v. Harrington, 28 Mich. 90; Sheldon v. Rice, 30 Mich. 296), even as against an innocent purchaser, Forbes v. Halsey, 26 N. Y., 53; Terwilliger v. Brown, 44 N. Y., 237. A foreclosure sale is void if distinct lots are sold in one parcel, Lee v. Mason, 10 Mich. 403; Piel v. Brayer, 30 Ind. 332; French v. Edwards, 13 Wall. 506; Bardeus v. Huber, 45 Ind. 235; Udell v. Kahn, 31 Mich. 195. Neglect to examine into title constitutes gross negligence, Johnson v. Thweatt, 18 Ala. 747; Witter v. Dudley, 42 Ala. 616. One is presumed to know what his attorney knows, even though the knowledge was obtained in a different transaction, Hovey v. Blanchard, 13 N. H., 145; Wiley v. Knight, 27 Ala. 336; Patten v. Merchants' Ins. Co., 40 N. H., 375; Hart v. Farmers' etc. Bank, 33 Vt. 252; Dresser v. Norwood, 17 C. B. (N. S.), 466; The Distilled Spirits, 11 Wall. 356; Russell v. Sweezey, 22 Mich. 235; Abell v. Howe, 43 Vt. 403; Rolland v. Hart, L. R., 6 Ch. App., 678; Waldy v. Gray, L. R., 20 Eq. 238; as to constructive notice, see Brotherton v. Hatt, 2 Ver. 574 (1706); Worsley v. Scarborough, 3 Atk. 392 (1746); Hiern v. Mill, 13 Ves. 120 (1806); Mountford v. Scott, 2 Madd. 26 (1818); s. c., Turn. & Russ., 274; Hargreaves v. Rothwell, Keene, 154 (1836); Fuller v. Benett, 2 Ha. 394; Fish v. Kempton, 7 C. B., 687; Ware v. Ld. Egmont, 4 De G., M. & G., 460.

Joslin & Whitman and Ashley Pond for defendants. The requirement that mortgaged premises be sold in distinct parcels does not apply to a single farm mortgaged in one parcel and afterwards divided, Lamerson v. Marvin, 8 Barb. 9; Griswold v. Fowler, 24 Barb. 135; Sherman v. Willitt, 42 N. Y., 150.

OPINION

Marston, J.

Complainants, children and heirs of Solomon B. Larzelere deceased, filed their bill of complaint, asking to have the administratrix's sale of certain lands of which their father died seized, set aside and declared void; also to have a certain mortgage deed set aside; to have the administratrix release and convey said lands to the heirs; to have certain mortgages held by defendant Starkweather released and surrendered, and for other purposes not necessary to be now mentioned. The case was heard upon pleadings and proofs, and the bill of complaint dismissed. Complainants appealed, and the material questions raised, as stated in the brief of complainant's counsel, are as follows:

First. "Whether the title to the premises in controversy, first acquired and held by the administratrix June 6th, 1864, and the mortgage liens she subsequently placed thereon, as now held by the defendant Starkweather, are, as against the complainants, or any one of them, absolutely void by force of statutory law, or, if not absolutely void by force of statutory law, are they voidable, as against the defendant, in favor of the complainants, or any one of them, by force of the legal and equitable principles of notice."

Under this latter head, questions were discussed as to whether defendant had actual or constructive notice, and the effect thereof, or if he had neither, whether he was chargeable with such laches, as to deprive himself of any benefit arising from the law of notice.

Second. "Are there any legal or equitable rules which prohibit the complainants, or any of them from now asserting by this bill their legal and equitable rights, as heirs at law," either because of the statute of limitations, from lapse of time, from acquiescence, or of an equitable estoppel?

So many of these questions as are deemed essential to a proper disposition of the case will be considered in their order.

I. Was the administratrix's sale of June 6th, 1864, "absolutely void by force of statutory law?"

It was insisted in the first place that the sale was void for the reason that the time in which the administratrix could sell the land for the payment of the debts of her husband had expired when the license was granted; consequently the license and all proceedings thereunder were absolutely null and void, within the decision in the case of Hoffman v. Beard, 32 Mich. 218.

That there may be no misunderstanding the facts upon which this position is taken, we state the several steps taken and dates thereof. Administration was granted May 21st, 1855; commissioners on claims were appointed April 11th, 1859; their report was made October 3d; the petition for license to sell was made April 22d; the license to sell granted June 15th; the sale was made Nov. 1st; the report thereof made Nov. 26th, confirmed Nov. 28th, and administratrix's deed executed December 15th, all in 1859. It will thus be seen that the petition for license to sell was made within four years after the granting of letters of administration, and the sale was made within four years and six months after the granting of such letters.

In delivering the opinion in Hoffman v. Beard this court had no intention of holding that under no circumstances could the probate court order a sale of the real estate of a deceased person for the payment of his debts, or that such a sale for such purpose could not be made after four years and six months from the granting of letters of administration. No such question was involved or decided in that case. Nor were the facts in that case such as would justify the court in coming to and announcing such a conclusion. Some expression may be found in the reasoning in the opinion delivered in that case, which taken alone might give color to such an idea. The reasoning in an opinion is not that of the court, but of the judge who prepares and delivers it. It may or may not be considered sound and unanswerable, and as such is the subject of criticism. The conclusion arrived at and announced upon the several questions discussed and essential to a proper disposition of the case, is that of the court, and in concurring in such conclusions it is not generally supposed or understood that everything contained or said in the opinion is thereby unqualifiedly and unquestionably adopted as the opinion of the court. In the preparation of an opinion, the facts of the case are in mind. It is prepared with reference to such facts, and when considered in connection therewith, will generally be found satisfactory. When, however, an attempt is made to pick out particular parts or sentences, and apply them indiscriminately in other cases, nothing but confusion and disaster will be likely to follow. In other words, the opinion and decision of a court must be read and examined as a whole in the light of the facts upon which it was based. They are the foundation of the entire structure which cannot with safety be used without reference to them. That the general rule laid down and the conclusion reached in Hoffman v. Beard was correct, as the facts stood in that case, we have as yet seen no reason to doubt, but that exceptions to such general rule exist, where, after the expiration of the time there stated, the probate court has jurisdiction to order a sale of the real estate of the deceased, for the payment of his debts, we have no doubt. Cases may frequently arise under our statutes, owing to delays arising from causes over which the administrator and probate court have no control, where the estate cannot be closed and settled within the usual and ordinary period. In all such cases the probate court does not lose its jurisdiction, when properly invoked, to order a sale of the real estate, and a sale made in accordance therewith will be valid and binding. Such has been the construction placed upon similar statutory provisions by the courts of other States. It is not necessary, nor is it best, to attempt to point out such exceptional cases, but the following sections of our statute and adjudged cases may be referred to as throwing additional light upon this subject. 2 Comp. Laws, §§ 4435, 4468; Cooper v. Robinson, 2 Cush. 184; Hudson v. Hulbert, 15 Pick. 423; Lamson v. Schutt, 4 Allen 359; Palmer v. Palmer, 13 Gray 326. We have no doubt but that the probate court under the facts in this case had jurisdiction to order a sale of the property in question, and that the sale made thereunder was not for want of jurisdiction in that court rendered invalid.

It is however, farther claimed that the sale was "absolutely void by force of statutory law" for the reason that the administratrix making the sale was indirectly interested in the purchase contrary to the statute (2 Comp. L., § 4562), which forbids the executor or administrator from being directly or indirectly interested in the purchase of the real estate, and declares all sales in violation of this provision to be void. The administratrix's deed to Henry Compton was dated and executed December 15th, 1859, and properly recorded on the 30th day of April following, and it is not claimed that there is any thing appearing of record tending to show that the administratrix was either directly or indirectly interested in the purchase made by Compton, under which this deed was given. Speaking for myself, I am not prepared to hold, under such circumstances, that third parties acting in good...