McClintock v. Laing

• Decision Date: 10 January 1871
• Citation: 22 Mich. 212
• Court: Michigan Supreme Court
• Parties: Freeman McClintock v. Harriet C. Laing and Alva C. Laing

22 Mich. 212

Freeman McClintock v. Harriet C. Laing and Alva C. Laing

Supreme Court of Michigan

January 10, 1871

Heard January 3, 1871

Appeal in chancery from Shiawassee circuit.

The bill was filed by Freeman McClintock, in the circuit court for the county of Shiawassee, in chancery, against Harriet C Laing and Alva C. Laing, to foreclose a mortgage executed by the defendants to one Peter Laing--the title to which the complainant had acquired by purchase--and to enforce an alleged verbal agreement made by the defendants with the complainant, to execute a mortgage upon a parcel of land adjoining the premises covered by the mortgage. The defendant, Harriet C. Laing, answered, and the bill was taken as confessed against the other defendant. A replication was filed and proofs were taken. After the proofs had been taken the complainant moved that the testimony for the defendant be suppressed, because taken without proper notice. The motion was supported by the affidavit of the solicitor of the complainant, stating "That annexed is the only notice of taking testimony ever served on the deponent on the part of the defendant, Harriet C. Laing, in this cause. That the same was handed to deponent by a colored man that he did not then know, and who was then an entire stranger to him. Deponent further says that S. T. Parsons, Esq., is the solicitor for the defendant, Harriet C. Laing, and the only solicitor of record of such defendant, and he is also well acquainted with the handwriting of S. T. Parsons, the said defendant's solicitor. That on the receipt of said notice deponent examined the signature, and he was then, and is now, well satisfied that said notice and the signature thereto is not the handwriting of said S. T. Parsons. That he is not acquainted with other signatures attached to said notice. Deponent further says, that from the way said notice was served, and from an examination of the signatures thereto, he came to the conclusion that the same was not made by any person authorized to take proceedings in the cause, and he gave it no attention, and he so believed until on his way to Flint, on the 29th day of June, 1868, at Gaines, deponent met Mr. Charles Draper, who informed deponent that he had been called upon to take testimony under said notice."

The motion to suppress the defendant's proofs was granted and the time for taking proofs extended sixty days. No further proofs being taken, the cause was heard upon pleadings and proofs, and a decree entered for the complainant in accordance with the prayer of the bill. From this decree the defendant Harriet C. Laing appeals to this court.

Defendant, Harriet C. Laing, entitled to costs of this court.

E. Gould, for complainant.

Otto Kirchner, for defendant.

OPINION

Cooley, J.

The bill in this case appears to have been filed to enforce an equitable lien on eight acres of land, and also to foreclose a mortgage on two acres of the same land.

The facts out of which the alleged equitable lien is alleged to have arisen, as stated in the bill, are substantially the following: In February, 1857, the defendant Alva C. Laing (who is, or at least then was, the husband of the other defendant) was owner of the ten acres of land above mentioned, and being then indebted to complainant, and being also desirous of obtaining from him advances to enable this defendant to build a house and make other improvements on said land, conveyed the land to complainant by a deed absolute in form, his wife joining therein, which deed, however, was intended as a mere security for such indebtedness and advances. While complainant so held said land as security, said Alva C. Laing proposed to him that it be reconveyed, and said Alva would file the necessary document in the office of the register of deeds setting the same apart as a homestead, and would then give complainant a mortgage signed by himself and wife to secure the amount due to complainant. And complainant, relying upon this promise, did reconvey the land to said Alva by deed, dated May 23, 1859, and said Alva did then file the necessary document setting the land apart as a homestead, but after he had done so refused to execute the mortgage as agreed. The bill alleges that defendant, Harriet C. Laing, knew of the indebtedness and advances, and that the same accrued and were made to aid said Alva in the purchase of said land and in the improvement thereof; and she was also cognizant of the agreement to secure the same by mortgage. The bill was filed May 27, 1867, and amended August 14, 1867, at which time the sum of five hundred and seventy-seven dollars was claimed to be due and secured by this equitable lien.

The first thing that strikes the mind as particularly noticeable in connection with this alleged lien is the fact that it was suffered to lie, without apparent reason, for eight years after complainant had been notified that Alva C. Laing did not intend to observe his agreement to give a mortgage. It is true that, under ordinary circumstances, the fact that a creditor delays for a series of years after his debt falls due to take proceedings for its enforcement, is not a circumstance which can prejudice his right, provided the period which elapses is less than that fixed by the statute of limitations as the period of legal bar to claims of that class or to those of analogous character. He has a right within the limits of that period to indulge his debtor, and may do so without justly giving rise to any suspicion of the equity and legality of the demand, so long as the debtor is taking no action inconsistent with a recognition of its validity; but if he asserts a demand which ought by the law to be evidenced by writing, but which rests in parol, as he alleges, because of the fraudulent, or at least dishonest refusal of the debtor party to execute the writing agreed upon, a strong presumption must necessarily arise that his claim is unfounded, if for a considerable period of time, without any obvious or assigned reason, he neglects to take the legal proceedings which one would naturally resort to with promptness if his assertions were true. A party who complains of fraud should be prompt in seeking relief; and especially if the case is one where relief is to be...