Ligare v. Semple

• Decision Date: 19 October 1875
• Court: Michigan Supreme Court
• Parties: George Ligare v. James Semple and others

32 Mich. 438

George Ligare v. James Semple and others

Supreme Court of Michigan

October 19, 1875

Heard June 18, 1875

Appeal in Chancery from Delta Circuit.

Decree of the circuit court reversed, and decree entered here in conformity with the views, and complainant the costs of both courts, and the case remanded.

Maynard & Ball and C. C. Bonney, for complainant.

Hughes O'Brien & Smiley, for defendants.

OPINION

Graves, Ch. J.

On the 22d of March, 1867, the complainant deeded to defendants Semple, Lynch and McDonald the undivided one-half of certain described parcels of land situated in the counties of Delta Menominee and Marquette, the area of the whole parcels being more than seventeen hundred acres. At the same time complainant and his wife, being separate and respective owners of other tracts in the same counties amounting to more than three thousand three hundred acres, joined in deeding them also to the same parties. The agreed purchase price for the transfers was forty-two thousand dollars, and of this sum thirty-two thousand was to be secured by the personal obligations of the grantees and their mortgage on the premises. Of the undivided half-interest mentioned, the most of it had been deeded to complainant May 28, 1864, by Elijah Peacock and wife and one Joseph Peacock, the latter being married but his wife not having joined. The fact that Mrs. Peacock was not a party to the deed to complainant was known when the latter deeded to the three defendants, and at the same time it was also understood that there were outstanding tax-titles against some portions of the land.

In this state of things, and after some parley respecting Mrs. Peacock's real and seeming rights, and concerning the tax-titles, the particulars of which may be waived for the present, the securities for the thirty-two thousand dollars purchase money were drawn, executed and delivered, and two of the personal obligations were framed as follows:

"$ 8,000. Escanaba, Delta Co., Mich., "March 22, 1867.

"On or before the first day of August, in the year 1869, for value received, we jointly and severally promise to pay to the order of George Ligare, the sum of eight thousand dollars, with interest at seven per cent. per annum from date. It being understood by the payers and payee of this note, that the sum of money to be paid by this note, or any part thereof, shall not become due or payable until the payee hereof shall at his own expense obtain a release of an apparent right of dower that exists in the person of Margaret Peacock, on some of the lands for which this note is given as part-payment, or said apparent right of dower shall otherwise cease to exist.

"James Semple,

"John Lynch,

"John S. McDonald."

"$ 3,000. Escanaba, Delta Co., Mich., "March 22, 1867.

"On or before the first day of August, 1869, for value received, we jointly and severally promise to pay to the order of George Ligare, the sum of three thousand dollars, with interest at seven per cent. per annum from date. The amount of money called for in this note shall not be payable until the said Ligare shall at his own expense clear up the taxes and tax-titles standing against the lands for which this note is given in part-payment.

"James Semple,

"John Lynch,

'John S. McDonald."

Some time after these obligations were given, and prior to August, 1869, complainant claimed that in truth Mrs. Peacock had no right of dower when his deed was given to defendants, and that the payment of the eight thousand dollars was not rightly subject to be deferred on account of any right in her. The defendants on the other hand insisted that payment could not be required of them until what they called her apparent right was in some way released or removed. And subsequently, the precise time not appearing, they offered thirteen thousand dollars on the obligations, but subject to the proviso that it should be made to appear by abstract or otherwise that the conditions appended to the obligations had been carried out.

Finally, the two securities remaining unpaid, the complainant, on the 20th of June, 1872, filed this bill to enforce payment by foreclosure, and also to subject the lands for taxes alleged to have been paid by complainant to protect his mortgage security.

The three makers of the mortgage and of the foregoing instruments were made defendants, and with them were joined the other parties, in character of subsequent purchasers, encumbrancers or otherwise.

All answered, and set forth as final ground of defense, that the conditions attached to the obligations had not been performed, and hence that no part of the money had yet fallen due.

Proofs were taken, and the cause coming on upon final hearing, the court below dismissed the bill, and complainant appealed.

On the hearing in this court, the cause was elaborately argued on the part of complainant, but was submitted by defendants on a printed brief. The basis of the defense was combated on different grounds, but it is not deemed needful to examine all the propositions made.

The defense to the obligation for eight thousand dollars may be first considered, and it seems scarcely necessary to say that this court, called on to administer the doctrines of equity in a case of this nature, must look at the essence and substance of the transaction, and endeavor to guard against any construction likely to infringe any settled principle of the court.

It is well in approaching the question, to notice somewhat the positions occupied by the parties, and also some other facts. The complainant desired to sell the real property interest in question, and the three defendants were anxious to buy it. The purchase price was agreed upon, and this was considered fair if the defendants received what they bargained for. The money specified in this obligation is a portion of that price, and if withheld is so much taken therefrom. If it is withheld whilst the defendants hold a title free from legal objection, it is in effect so much forfeited to them out of the consideration. They are allowed to retain a large amount of complainant's property without compensation. What complexion does the transaction wear in regard to any right in defendants to withhold this eight thousand dollars? The restriction does not touch the existence or justness of the debt. It looks merely to the postponement of payment, and the impediment named is an outstanding apparent right of dower in Mrs. Peacock. When the three defendants made the obligation, they well knew that Mrs. Peacock was a resident of Illinois, and not of this state, at the time her husband deeded to complainant. This is shown by the answer and by the deposition of McDonald and Lynch, and the latter swears that the record of title showed it.

They further swear that their counsel informed them that in truth Mrs. Peacock had no right of dower, because she lived out of the state, but that she had an apparent right. And Lynch testified that the want of her signature to the deed was the circumstance which produced the apparent right.

McDonald further testifies that the condition was added because the question of dower was a subject of doubt among them all, and that the course adopted was taken to enable the matter to be then closed up, and to allow until the notes should be due to clear up the record. He says: "All we expected was for them to give us a perfect title, with a record that was clear. Didn't expect to quibble about little and unnatural things. Wanted a title that was good to keep, or good to sell." Lynch says: "All parties agreed there was an apparent right of dower which existed in Mrs. Peacock; all we wanted was to be satisfied that we had a good, fair title; we wanted the records to show this." Semple says: "The phrase apparent right of dower meant, as I understood, when Mr. Ligare made his title clear, the note was to be good. To make the title clear, Mr. Ligare was to get Mrs. Peacock to sign the deed, or to clear it up in some other way. The word apparent was put there to cover a supposed right which might exist."

The fair deduction from the defendants' explanations is, that they were to be made satisfied that Mrs. Peacock had no right of dower, and satisfied that the state of the record did not imply that she had. Accepting this view, they were bound to be satisfied on reasonable evidence, and are not at liberty to close their eyes against law and fact and arbitrarily insist that they are not satisfied.

It is noticeable that Ligare tried to get Mrs. Peacock to give a release, and that she refused. That she could not be compelled to make such a paper, is too plain for argument, and we are not aware of any legal proceedings open to Ligare to make it less apparent that she has any right. When defendants' counsel informed them she had no right at all, they were certainly correct. The facts were all understood. This is admitted. And it was just as certain, in view of those facts, that no contingent right remained outstanding on her account, as it would have been if it had been known she had died in the lifetime of her husband.

The precise point was not directly in judgment in Pratt v Tefft, 14 Mich. 191, but it was strongly intimated. It was there held that in case a woman should reside here with her husband at the time of his conveyance, and thereafter should remove away and reside abroad at the time of his death, she would lose all right of dower in land so conveyed; and this was put upon the ground that the statute contained a negative implication against any right in her in case of her non-residence at her husband's death. Admitting this construction to be correct, the legislative purpose is much plainer to withhold the right in case she resides abroad when her...