Newton v. Sly

• Decision Date: 14 May 1867
• Citation: 15 Mich. 391
• Court: Michigan Supreme Court
• Parties: Melville Newton v. Charlotte Sly

15 Mich. 391

Melville Newton v. Charlotte Sly

Supreme Court of Michigan

May 14, 1867

Heard May 9, 1867. [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This was an action of ejectment brought by defendant in error to recover dower in lands conveyed by her husband during their marriage.

Judgment was rendered for plaintiff below.

The facts and rulings of the circuit judge are stated in the opinion.

Judgment affirmed, with costs.

D. C Holbrook, for plaintiff in error:

1. The plaintiff in error insists that the defendant in error is not entitled to recover at all in this case, for the reason that as to the defendant in error the mortgage is outstanding and in the hands of the plaintiff in error; that so long as any amount remains unpaid, the mortgagee or assignee, plaintiff in error, is entitled to possession and to the estate.

The plaintiff in error claims to hold under the assignee of the mortgagee by virtue of the warranty deed of such assignee of Durfee: Comp. L., § 2775.

2. The plaintiff in error insists that the arrangement between Silas Sly and his sons, that he would take the conveyance for their convenience, and that he was to convey, and did convey, operated as an executed trust; but if it did not so operate, then it was a sale partially executed by delivering possession in consideration of payment of the purchase price or payment of the mortgage; and, that as the sons thereby became the owners, as of the date of the mortgage, they and their grantee, the plaintiff in error, are entitled to have deducted, as of the date of alienation, the whole amount paid by them on the mortgage, either before or after alienation: Comp. L., § 2777; 6 Mich. 470.

3. The plaintiff in error claims that the court below erred in charging the jury that the defendant was entitled to dower in this cause as against this plaintiff, with or without deductions, and this, for the reason that if a grantor holds a mortgage for part of the purchase money, he is compelled to give up a part of the land without knowing that the whole will ever yield sufficient to pay the balance. It seems absurd that dower shall be granted in lands against the solemn pledge, agreement and mortgage of the party claiming such dower.

It is useless to cite any of the multitude of authorities holding that dower can not be claimed against a mortgage to secure the purchase money. The case of Snyder v. Snyder is the only one to the contrary, and there this point was not raised.

Ward & Palmer, for defendant in error:

1. The court properly excluded all testimony tending to show that the deed from Durfee to Silas Sly was taken, and the title was to be held by him in trust for the benefit of his sons. The bill of exceptions states that no trust was expressed or set forth in the deed or in any writing; in other words, if any trust existed, it must have been a mere resulting trust, or a trust created by implication of law or by a parol contract.

Such estates are now abolished by statute, except such as are specifically set forth in the instrument creating them: 9 Mich. 365; 2 Comp. L., §§ 2630, 2632, 2637.

Parol evidence, therefore, could not be received to establish either an express or implied trust: 10 Paige Ch., 562; 2 Comp. L., §§ 3177-8.

2. It is claimed that the court erred also in refusing to charge that the defendant below was entitled to have deducted from the value of said premises all that his grantors had ever paid on the Durfee mortgage, as well before as after their alienation by Silas Sly. If it be true that all the money paid by the sons of Silas Sly on the purchase of the premises they themselves made of Durfee inured exclusively to the benefit of the grantee, which is most plainly declared shall be the case in the statute above cited, then, in effect, so many of the payments as were made while Silas Sly owned them, and before he aliened them, were made by him, and hence could not be deducted from the value of said premises before dower was assigned, and that the defendant below had no right to have any such deductions made.

It is urged that the circuit judge erred because he would not charge that all the money the sons paid to Durfee as purchase money, on the premises they bought of him, and put in Silas Sly's name, should apply as purchase money of the same premises from Sly to his son.

If this were so, the statute could always be evaded by the simple method of the purchaser making a contract with the grantee that the money advanced by him in payment should be the purchase money from the grantee to him, and he could take the deed when he chose, and if the grantee refused afterwards to convey he could compel the grantee to convey to him by a bill for specific performance.

Again, such a construction of the statute could only be enforced on the ground that the money was advanced for the use of the person who paid it on such a purchase, which is directly contrary to the statute. In this case it would create a use for the sons who paid the purchase price for Sly to Durfee, in that all such money was to inure to the benefit of the sons on a purchase from Silas Sly.

4. The court did not err in charging that the plaintiff in error had a right to have deducted only such amount of the Durfee mortgage as...