Love v. Francis

• Decision Date: 14 October 1886
• Citation: 29 N.W. 843,63 Mich. 181
• Court: Michigan Supreme Court
• Parties: LOVE v. FRANCIS and others.

29 N.W. 843

63 Mich. 181

LOVE v. FRANCIS and others.

Supreme Court of Michigan

October 14, 1886

Appeal from Kalamazoo. In chancery.

Interpleader.

Dallas Boudeman, for complainant.

Edwards & Stewart, for defendants and appellants.

George P. Hopkins, for defendants and appellees.

CHAMPLIN, J.

On April 28, 1866, Cyrus K. Francis was the owner in fee of 49 acres of land situated in the township of Texas, Kalamazoo county, Michigan. He had four children living at that time namely, Theodore and Charlemagne Francis, Harriet Bell, and Elizabeth Barrett. Another of his daughters had died, leaving two children, who were then living, named Byron H. Fox and Estella Brown. These persons were his heirs at law at the time of his death, which occurred on the eighteenth day of March, 1880. On the said twenty-eighth day of April, 1866 Cyrus K. Francis conveyed by deed to his son Charlemagne Francis the 49 acres of land. The consideration expressed in the deed, although nothing was paid down, was $1,600. Upon the receipt of this conveyance, Charlemagne Francis made and delivered to his father, Cyrus K., his promissory note as follows:

"KALAMAZOO April 28, 1866.

"For value received, I promise to pay to the legal heirs of Cyrus K. Francis, four years after his death, sixteen hundred dollars, with 7 per cent. interest per annum, and payable annually to the said Cyrus K. Francis during his natural life-time; at his death the interest to cease. The payment of this note is secured by mortgage on real estate of even date herewith, and stamped with revenue stamp of two dollars. CHARLEMAGNE FRANCIS."

To secure the payment of this note, on the same day Charlemagne made, executed, and delivered to Cyrus K. Francis a mortgage covering the same lands conveyed to him by his father, in which it is stated that the mortgage was made to secure a part of the purchase money for the premises therein described. The mortgage contains the usual power of sale in case of default. Cyrus K. Francis caused this mortgage to be recorded on the twenty-eighth day of April, 1866, but retained possession of the note until his death. Charlemagne Francis went into possession of the property conveyed to him, and thereafter paid to Cyrus K. Francis the annual interest as it matured upon the note for the years 1867, 1868, and 1869. For the three years following, Charlemagne neglected to pay the interest. In July, 1872, there was due for unpaid interest $336, and Cyrus K. Francis commenced a suit in the circuit court for the county of Kalamazoo in chancery to foreclose the mortgage. In this suit Cyrus K. Francis was the sole complainant, and Charlemagne was the sole defendant. Personal service of subpoena to appear and answer was had, and a decree for a foreclosure by sale was duly entered for the interest due. The bill of complaint filed in the cause, in addition to the clauses usually contained in such bills filed to obtain a foreclosure where the whole indebtedness is not due, contained the following statements:

"And your orator further shows that he was the owner of said real estate above described, and, being aged and infirm, he desired to dispose of his real estate in such a manner as might secure to himself a comfortable support, and at the same time he had it in view to declare and direct the disposition of the avails of his said real estate after his death; and accordingly, to effectuate such purpose, he sold and conveyed to said Charlemagne Francis, his son, his said real estate above described, and received from said Charlemagne Francis the note and mortgage hereinbefore mentioned and described. And said note and mortgage were given for the said purchase money of the said described real estate; your orator stipulating for the payment of the interest, as mentioned in said note and mortgage, during his life, as his means of support. And he further shows that he is the absolute owner of the entire mortgage interest mentioned and described in said mortgage; no consideration having passed to him from any persons whomsoever on account whereof or whereby he provided for the payment of said purchase money to his heirs."

Proof was introduced in support of these statements in the bill. Cyrus K. Francis testified: "The amount of principal and interest unpaid on this note and mortgage, marked 'Exhibit A,' is mine; it belongs to me. I have never delivered to any person the note and mortgage. I own the same myself, and provided for its payment in this manner, with the view to make, at my own time, distribution of my own property. Am acquainted with these mortgaged premises. I went onto them in 1855, and stayed there till within a few years past, and until about four years ago. At the date of this mortgage, marked 'Exhibit A,' I conveyed these mortgaged premises to the defendant, Charlemagne Francis, and the mortgage in question I received from the defendant to secure the payment of the whole purchase money upon that sale. I received no consideration for the provision making the payment of the principal of $1,600 payable to my heirs."

The decree was entered March 6, 1873, and authorized a sale of the mortgaged premises if the amount reported due was not paid by July 15, 1873. On June 14, 1873, Charlemagne Francis sold and assigned his interest, which he then had as heir at law of Cyrus K. Francis, in the sum of $1,600, payable to the heirs of Cyrus K. Francis, and secured by said mortgage to the complainant, and on the sixteenth of June, 1873, said Charlemagne sold and conveyed the mortgaged premises to the complainant. This conveyance was subject to the mortgage above referred to, and was conditional that complainant should pay the mortgage as so much purchase money for the premises. Complainant has paid the amount found due by the decree, and has paid all interest on the note up to the time of the death of Cyrus K. Francis. Upon the death of Cyrus, Theodore Francis was appointed administrator of his estate. Commissioners on claims were appointed, and a claim was presented and allowed in favor of Theodore Francis for $1,745.72, and no appeal was taken from such allowance.

In February, 1885, the complainant filed his bill of complaint, setting forth substantially most of the facts above narrated, and alleging that the defendant Theodore claimed that the moneys secured by the note and mortgage belonged to the estate of Cyrus K. Francis, and should be paid to him as the administrator thereof; that the other defendants claimed that said moneys belonged to the heirs of the said Cyrus, and should be paid to them without passing through the hands of the administrator; asserts that he is and has always been willing to pay said heirs or administrator, or both, said $1,600, except the share thereof assigned to himself by Charlemagne; prays that defendants may interplead, and settle between themselves to whom the money belongs, and asks leave to redeem the premises from said mortgage, and to pay the redemption money into court, and that the mortgage may be discharged.

Defendants Theodore Francis, Harriet Bell, and Elizabeth Barrett answer, admitting the facts alleged in the bill, except that they say that the making of said conveyance by Cyrus K. Francis to Charlemagne, and taking the note and mortgage from him in the manner provided, was in pursuance of the purpose then entertained by Cyrus K. Francis in his life-time to distribute the avails of this real estate after his death. They also set up the foreclosure proceedings, and insist that the decree in that suit established the fact that said Cyrus K. Francis was the owner of said note and mortgage, and upon that question is res adjudicata, and that said indebtedness was the estate of said Cyrus at the time of his death. They also aver the allowance of the claim in favor of Theodore, and that whatever interest the heirs of Cyrus K. have in said $1,600 is an interest in the residue only after payment of the debt of the estate to said Theodore, and that it is the duty of complainant to pay said mortgage debt to said administrator, and defendants Harriet and Elizabeth deny that they set up any claim to said debt, and insist that such money is payable to the administrator, and not to the heirs, of said Cyrus K.

The defendants Byron H. Fox and Estella Brown answered separately, and admit the facts charged in the bill of complaint, and claim that they are entitled, as two of the heirs at law of Cyrus K. Francis, to the same share of the avails of said note that their deceased mother would have been entitled to if living.

The cause was heard in the court below upon proofs taken in open court, and a decree was rendered therein on the sixth day of January, A.D.1886, that the said sum of $1,600 now belongs to the persons who were the children and grandchildren of Cyrus K. Francis at the date of the mortgage, or their legal representatives in case of the death of any, and that complainant, by assignment from Charlemagne Francis, stands in his place and stead, and succeeds to his share of said sum of $1,600 and interest; that complainant be allowed to redeem by paying into the hands of the register of the court, on or before three months, the said sum of $1,600 and interest; and that thereupon said mortgage be discharged. The decree also declares who were the heirs at law to whom such money should be paid, and that one-fifth thereof be paid to each, namely the complainant, Theodore Francis, Harriet Bell, and Elizabeth Barrett; and one-tenth thereof to Byron H. Fox and Estella Brown each; and that complainant's costs should be paid out of the fund of $1,600 before distribution thereof under the decree. It was further decreed that Theodore Francis, as administrator of the estate of Cyrus K. Francis, deceased, had no...