McKinney v. Curtiss

• Decision Date: 15 April 1886
• Citation: McKinney v. Curtiss, 60 Mich. 611, 27 N.W. 691 (Mich. 1886)
• Court: Michigan Supreme Court
• Parties: MCKINNEY v. CURTISS and others.

27 N.W. 691

60 Mich. 611

MCKINNEY v. CURTISS and others.

Supreme Court of Michigan

April 15, 1886

Appeal from Ionia.

Wilson & Trowbridge, for complainant.

Mitchel & McGarry, for defendants and appellants.

SHERWOOD, J.

The bill in this case shows that the complainant is a resident of the state of New York; that on the second day of September 1878, he loaned to John Hamilton, of Ionia, $500, and took his negotiable note, payable to his order, due in one year from date, at 7 per cent., therefor; that on the eleventh day of August, 1880, the maker paid one year's interest on the note, and on the thirtieth day of the same month he died at Ionia, leaving the note still in the hands of complainant unpaid, and that complainant always has been and still is the owner thereof; that on the fifth day of July, 1881, Daniel Hamilton, of the county of Ionia, was duly appointed administrator of the estate of John Hamilton by the probate court of said county, and still remains acting as such; that soon after the death of John, the plaintiff being in Michigan on a visit to Ionia, as he was about to leave for home indorsed his name upon the back of the note, and left it with George W. French, of Muir, for the purpose of having him present it to the commissioner on the estate, for allowance against the estate; that before the first meeting of the commissioners Margarette Curtiss, the defendant above named and daughter of John Hamilton, went to the office of Mr French, with the intent to wrong and cheat the complainant, and obtain possession of the note, and fraudulently obtained possession thereof, saying, at the time, to said French, that she wanted to see the indorsement upon the same, and to see the signature; and that French handed the note to her for the purpose she stated; that as soon as she received the note from him, she put it in her pocket, and immediately left the room; that she did this against his consent and protest, saying, as she left, "Uncle owes me, and I am going to keep this note," refused to give it up, and a short time thereafter carried it away with her to her residence in the state of Minnesota.

The bill of complaint further charges that said complainant did not owe her anything; that she had no right to take the note, and had no interest whatever therein; that, Mrs. Curtiss being out of the state, the complainant could not replevy the note; that she is entirely insolvent, and ever since has been; and that she and her husband reside in Minnesota. And complainant further avers that under advice of counsel, at the first meeting of the commissioners, he presented a claim upon said note for allowance, in the following form:

"The Estate of John Hamilton, Dr., to Wm. H. McKinney for money loaned to said Hamilton, on the second day of September, 1878, with interest at 7 per cent. from date of loan, said loan having been made on a promissory note bearing date September 2, 1878, and signed by John Hamilton, which said note the said McKinney is not able to present at present. We claim to be due from estate, October 20, 1881, $574.65.

"W.H. MCKINNEY,

"By MORSE, WILSON & TROWBRIDGE, Attorneys.

"The note being the same one presented to commissioners by Mrs. Curtiss, which note we claim is now owned by said McKinney, and not by Mrs. Curtiss.

"Amount, ............... $500 00

2 years' interest, ...... 70 00

1 month, ................. 2 91

18 days, ................. 1 45

29

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$574 65" The bill further charges that upon the hearing before the commissioners the defendant Mitchel acted as attorney for the estate, also as attorney for the defendant Mrs. Curtiss; that he appeared for her with said note in his possession, and asked that it be allowed in her favor and against the estate; that complainant appeared by his attorney, and offered to show, as against the allowance of the note in favor of Mrs. Curtiss, and in favor of its allowance in his behalf, that the note did not belong to Mrs. Curtiss, and that she had no right thereto or interest therein, and that she obtained possession of the same by fraud, and that the complainant was the owner thereof, and entitled thereto; that these facts, however, were objected to by defendant Mitchel, and that the commissioners would not allow complainant's counsel to make such proofs, and allowed the note in favor of Mrs. Curtiss, and disallowed the complainant's claim therefor as follows:

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NAME OF CLAIMANT, ETC. AMOUNT AMOUNT AMT. FINAL

CLAIMED. THEREOF BALANCE IN

DIS'LOWED FAVOR OF

CREDITOR.

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Mrs. C.C. Curtiss' note v. John (A.B. Morse,

Hamilton, dated September 2, 1878, attorney

for $500, due in one year, payable to for W.H.

"Wm. H. McKinney." Also "received" on McKinney,

the within note one year's interest, objected to

due the second day of September, allowance

1879. of Mrs.

C.C.

Curtiss'

claim.)

W.H. MCKINNEY.

Ionia, August 4, 1880. $582.40 $582.40

Wm. H. McKinney claims same note as $574.65 $574.65

presented by Mrs. C.C. Curtiss,

claimed to be due October 20, 1881,

by his attorneys, Morse, Wilson &

Trowbridge.

--That on the back of the claim presented by complainant, the commissioners indorsed the following: "Disallowed on the ground that the question of ownership of the said note is one that we have no right or jurisdiction to decide." And the bill further shows that the said Daniel Hamilton, administrator, is also a brother of Mrs. Curtiss, and that, on request of complainant, he refused to take an appeal to the circuit court from the allowance by the commissioner of said note in favor of Mrs. Curtiss, and that complainant took an appeal in both cases to said circuit court; that complainant's case against the estate was heard in the circuit court, and the circuit judge made the same ruling as did the commissioners, and disallowed his claim, and that said defendant Mitchel appeared upon said trial as attorney for the estate; that said circuit court decided that it could not hear the testimony showing the complainant to be the owner of the note, and that Mrs. Curtiss' possession of the same was a fraud, and affirmed the report of the commissioners, and that this action of the commissioners and of the circuit court in the premises was subsequently affirmed in this court, (see 53 Mich. 497, and 19 N.W. 263;) that the case of Mrs. Curtiss appealed to the circuit has not yet been tried.

The bill further states, using its own language: "That the said Daniel Hamilton, combining and confederating with said William W. Mitchel and Margaret Curtiss to cheat and defraud your orator out of the just amount of said note, which belongs to him, will not resist the suit of Mrs. Curtiss, now pending on appeal, as hereinbefore set forth; but will, unless restrained by this court, pay to her or the said William W. Mitchel the amount of said note out of the money in his hands as administrator of said estate of said John Hamilton, deceased. And your orator further shows that said note belongs to him; that said Margaret Curtiss obtained and holds said note without right, and in fraud of your orator's rights, and that in equity she holds it in trust for his benefit; that the estate of said John Hamilton, deceased, does not dispute the genuineness of said note, or that it is a legal or valid claim against said estate; that said note is now on file in said probate court; and that in none of the proceedings as heretofore taken have the merits of the question as to who owns said note been tried or determined. And your orator further shows unto the court that the said Margaret Curtiss obtained the said note in the way and manner she did for the express purpose of cheating and defrauding your orator out of the same; that she was advised to do so by said William W. Mitchel, and that he, the said William W. Mitchel, has combined and confederated with her all through said legal proceedings, hereinbefore set forth, to defeat your orator in his attempt to recover the value of said note, or said note, at law, and that William W. Mitchel and said Daniel Hamilton, as administrator of said estate, are now combining and confederating together to still further harass and annoy your orator, and to defraud and cheat him out of his just rights in the premises, by taking means to have said administrator, Daniel Hamilton, pay over, or pretend to pay over, out of the funds of said estate of John Hamilton, the amount of this note and interest to said Margaret Curtiss, or their assignees, and destroy said note; that your orator is informed and believes that the said William W. Mitchel has already, since the decision of said supreme court, taken steps to induce said Daniel Hamilton to pay the amount of said note to him, so that your orator could not reach it. And your orator further shows that, unless enjoined by the order of this court, he is fearful that the amount will be so paid and the note destroyed, and his equitable rights to said note and its value entirely destroyed, and barred beyond all relief."

The bill prays that a decree may be entered decreeing the note to be the property of the complainant, and that Mrs. Curtiss holds the same in fraud of his rights and in trust for him, and that he is entitled to the claim allowed her against the estate, and that the estate be decreed to pay the same to complainant; and also prays for general relief, and that defendants be enjoined from doing those things inconsistent with the relief prayed.

Defendants Hamilton and Mrs. Curtiss filed these joint and several answers, asking...