Merrill v. Allen

• Decision Date: 03 April 1878
• Citation: 38 Mich. 487
• Parties: Wallace M. Merrill, Adm'r of the estate of Harriet Kilburn v. Harry Allen
• Court: Michigan Supreme Court

38 Mich. 487

Wallace M. Merrill, Adm'r of the estate of Harriet Kilburn v. Harry Allen

Supreme Court of Michigan

April 3, 1878

Submitted January 18, 1878

Appeal from Jackson.

Bill to enforce an equitable lien. Complainant appeals.

Decree of the court reversed and the cause remanded with instructions. Complainant to recovered costs of both courts.

Austin Blair for complainant. The vendor of land has a lien on it for the amount of the purchase money, and the vendee is his trustee to that extent, 2 Story's Eq. Jur., § 1217 Garson v. Green, 1 Johns. Ch., 308; Stafford v Van Renssleaer, 9 Cow. 318; no agreement is necessary to create the lien, 4 Kent's Com., 151, lect. 58; the vendor may have specific performance, 2 Story's Eq. Jur., § 790; Champion v. Brown, 6 Johns. Ch., 398; the lien is not destroyed by any waiver obtained by fraud Converse v. Blumrich, 14 Mich. 123; McDole v Purdy, 23 Iowa 277; Sears v. Smith, 2 Mich 243; and the party defrauded may rescind or affirm the contract, Bradley v. Bosley, 1 Barb. Ch., 125.

W. K. Gibson for defendant.

Marston, J. Campbell, C. J. and Graves, J. concurred. Cooley, J., did not sit in this case.

OPINION

Marston, J.

Complainant as administrator of the estate of Harriet Kilburn, deceased, files his bill of complaint alleging therein that in April, 1870, Mrs. Kilburn, pursuant to certain negotiations, conveyed by warranty deed certain described premises to Harry Allen in consideration of the sum of one thousand dollars; that no part of said purchase money was then or has ever since been paid; alleges that such consideration and interest thereon is a legal and equitable lien upon the premises conveyed and constitutes an equitable mortgage upon the premises and prays for a foreclosure and sale of the premises for the payment thereof.

The complainant in his bill also sets forth that at the time this conveyance was made to Allen, he, Allen, agreed to pay the consideration by procuring William Telford to convey to Mrs. Kilburn by a good and sufficient deed forty acres of land then occupied as a homestead by Telford, and that he, Allen, would pay Telford for the same in certain notes which he, Allen, then held against divers persons; that Telford had agreed to accept the same and execute said deed; that Allen had not procured such conveyance and that Telford refused to convey the same to Mrs. Kilburn. It is farther set forth in the bill of complaint that on the 21st day of April, 1870, being the next day after Mrs. Kilburn had conveyed to Allen, Mrs. Kilburn and Allen went to Telford's to complete the arrangement by procuring the deed from Telford; that Telford refused to make such a conveyance; that Mrs. Kilburn then refused to have anything farther to do with the matter, demanded back her deed of conveyance to Allen who refused to return the same, but told her she could have certain notes hereafter referred to; that said notes were taken from the table by her husband, John Dayment, who said he would go and see a lawyer about the matter; that he went away with the notes, left the country and never returned. The bill farther charges that defendant Allen accompanied Dayment in pursuance of some pre-arrangement and obtained from Dayment the notes and converted them to his own use, and that all these proceedings on the part of Allen, Telford and Dayment were parts of a scheme to cheat and defraud Mrs. Kilburn; that her marriage to Dayment was a part of the same scheme, Dayment being a transient person, unknown in that region, and was but twenty-five years of age, while Mrs. Kilburn was forty.

Defendant in his answer admits the conveyance to him in April, 1870, by Mrs. Kilburn; the payment to her of the agreed consideration, and the taking and retaining possession of the property with the knowledge and acquiescence of Mrs. Kilburn; sets up the agreement and transaction in detail, and denies all charges of fraud. The defense may be more clearly set forth from the brief of counsel for defendant:

I. That the theory of the complainant's right to recover rests upon the statement that Allen obtained the deed from Mrs. Kilburn upon the sole consideration that he would give her in exchange certain lands owned by Telford, and that he, Allen, would pay Telford therefor certain notes which he, Telford, had agreed to accept; that this part of the complainant's case is not sustained by the proofs; that relief cannot be granted on evidence establishing a case not made by the bill, and that complainant has a full and adequate remedy at law under the case made by the bill.

II. That the case made by the bill is unsupported by the proof.

The correctness of defendant's legal propositions cannot be questioned: their application to the facts in this case may be. Where fraud is alleged as the foundation of the relief sought, it will be but seldom indeed that the complainant will be able to set forth fully the correct theory of the case in his bill. And this will be especially true where the party defrauded has died and the proceedings are commenced by his representatives. Where parties contemplate the commission of a fraud, they usually intend to conduct and carry out the entire matter not only in secret, but to so cover up their tracks that the entire negotiations will, upon their face, appear fair, reasonable and honest, the...