Noakes v. Noakes

• Decision Date: 05 September 1939
• Docket Number: No. 94.,94.
• Citation: 290 Mich. 231,287 N.W. 445
• Parties: NOAKES v. NOAKES et al.
• Court: Michigan Supreme Court

290 Mich. 231

287 N.W. 445

NOAKES

v.NOAKES et al.

No. 94.

Supreme Court of Michigan.

Sept. 5, 1939.

Action by Edmund Noakes against Joseph Austin Noakes and others, to enforce claim to title to realty. From a judgment for plaintiff, the named defendant and another appeal.

Reversed. Appeal from Circuit Court, Wayne County, in Chancery; Sherman D. Callender, Judge.

Argued before the Entire Bench.

C. W. Videan, of Detroit, for appellants Joseph Austin Noakes and Thomas Henry Noakes.

Edward E. Trotman, of Detroit, for appellees Edmund Noakes, William Noakes Frederick Noakes, Emily Noakes Gallard, and Florence Noakes Evans.

POTTER, Justice.

January 12, 1931, Edmund J . Noakes died, testate, leaving plaintiff and defendants, his children, surviving. Petition for probate of his will was filed in the probate court for Wayne county, Michigan, the will admitted to probate and Thomas Henry Noakes, executor named in the will, appointed and qualified. The executor retained John A. Boyce as his attorney.

By the terms of the will, all personalty was bequeathed to Joseph Austin Noakes, defendant herein, youngest son of the testator, and all realty was devised in six equal shares to the other parties to this case. Joseph was and is a resident of the State of California and is unable to read and write.

Part of the property listed as personalty in the inventory consisted of the vendor's interest under a land contract for the sale of a small, frame dwelling house in the city of Detroit. Fay Shagena and Mary Shagena were the vendees. Appellees contend in their brief this property was sold on land contract after the testator executed his will and that it, therefore, passed under the will as real estate, 3 Comp.Laws 1929, § 13487 (Stat.Ann. § 26.1081). Appellants contend the vendor's interest in such real estate was personal property and passed as such, Bowen v. Lansing, 129 Mich. 117, 88 N.W. 384,57 L.R.A. 643, 95 Am.St.Rep. 427;Detroit Trust Co. v. Baker, 230 Mich. 551, 203 N.W. 154,204 N.W. 773;Detroit & Security Trust Co. v. Kramer, 247 Mich. 468, 226 N.W. 234. The contract for the sale of this property does not appear in the record, nor does the record show when this property was sold on land contract. The probate court inventoried the vendor's interest therein as personal property. No objection was taken thereto. During the pendency of the probate proceedings, the land contract was surrendered by the vendees. The estate was administered and this vendor's interest assigned by the probate court as personalty. Appellants contend this was a construction of the will and that it is now too late to raise the question that it was real estate.

The vendees surrendered their interest in the property to the executor, August 3, 1931, during the administration of the estate, the surrender being evidenced by quitclaim deed. It was suggested to Joseph by the executor and his attorney that he execute a quitclaim deed of the property to be used by them to settle ‘trouble’ or litigation concerning the estate. Joseph executed such a deed, dated February 20, 1931, acknowledged May 9, 1932, covering the property, naming his brothers and sisters as grantees. This deed was later corrected by the execution of a new deed in which Joseph's wife joined. The deed was held by the attorney until the fall of 1932 when he turned it over to the executor.

The probate files disclose no appearance on behalf of the heirs in opposition to the will, no contest thereof, no appearance and objections to the inventory filed or in opposition to the final account of the executor and no objections to the allowance thereof. June 23, 1932, the final account was allowed, the residue consisting of personal property assigned to Joseph, and the estate closed. No appeal was taken from the order of assignment.

In the fall of 1932, Joseph visited Detroit and the executor returned to him various papers, including the quitclaim deed which Joseph had executed and mailed to Mr. Boyce, the attorney.

May 3, 1935, plaintiff filed a bill of complaint against defendant Thomas Henry Noakes in the Wayne circuit court (chancery cause No. 267,295) claiming title to the property and praying the quitclaim deed be required to be recorded. A decree was entered dismissing the bill with prejudice.

November 30, 1937, plaintiff filed the bill of complaint herein claiming the quitclaim deed executed by Joseph and his wife to his brothers and sisters was for a valuable consideration and was not only executed, but delivered, and that thereby plaintiff became vested with an equal, undivided one-sixth interest in the property.

Defendants contend:

(1) That the deed, although executed, was never legally delivered;

(2) That the order of assignment entered in the probate court June 23, 1932, is res adjudicata of the cause of action here alleged;

(3) That the decree entered by Hon. Clyde I. Webster, October 30, 1937, is res adjudicata at least as to defendant Thomas Henry Noakes of the cause of action here alleged;

(4) That the deed was without consideration and, therefore, void;

(5) That no agreement to convey was alleged or proven, particularly no agreement sufficient to be valid under the statute of frauds;

(6) That the execution by Joseph and his wife of the quitclaim deed and the delivery thereof to Mr. Boyce, the attorney, upon condition, in the absence of clearly defined and fully expressed written authority to him to deliver, and in the absence of the happening of a fully expressed and clearly defined condition, created no estate or interest in defendants.

These defenses were raised in the trial court but it held the quitclaim deed which Joseph signed was for a valuable consideration and legally delivered; that the deceased, by his will, did not intend to vest in Joseph the title to the parcel herein involved and ordered the deed to be recorded, and charged appellants with the rental value of the property from the date of the deed.

(a) The decree entered in the Wayne circuit court (chancery cause No. 267,295) is res adjudicata of the cause of action here alleged insofar as Thomas Henry Noakes is concerned. The case involved the same subject-matter and issues, practically the same relief was sought, and it was decided on its merits. Tucker v. Rohrback, 13 Mich. 73;Cohen v. Home Life Ins. Co., 273 Mich. 469, 263 N.W. 857;McDannel v. Black, 270 Mich. 305, 259 N.W. 40. Moreover, the decree dismissing the suit specified that it was entered with prejudice. The other defendants not having been parties to such suit, it cannot be res adjudicata as to them. Besancon v. Brownson, 39 Mich. 388.

(b) The order of assignment entered in Wayne probate court cause No. 167,557 is res adjudicata of this cause. It provided: ‘It is further ordered that the residue of said estate, consisting of personal property, be and the same is hereby assigned to Joseph Austin Noakes, son of said deceased and the sold residuary legatee in accordance with the provisions of the said will.’

Plaintiff admits that an order of the probate court unappealed from is res adjudicata (see Calhoun v. Cracknell, 202 Mich. 430, 168 N.W. 547;Heap v. Heap, 258 Mich. 250, 242 N.W. 252;MacKenzie v. Union Guardian Trust Co., 262 Mich. 563, 247 N.W. 914), but claims the above-quoted order does not cover the real estate which is the subject-matter of this suit. The order covers such real estate, in view of the facts (1) the real estate here in question was not otherwise provided for by the order; (2) this part of the order refers to ‘the residue’ of the estate, which would necessarily include' of the estate, which question; (3) such property must have been considered personalty by the court in view of the words ‘consisting of personal property.’ Whether or not the provate court was right in its classification of the property here as personalty is not before us, there having been no appeal from this decision and order. Joseph and his wife received title to the property through the probate proceedings and unless the deed signed by them operated to pass title, plaintiff is not entitled to relief.

The first deed (signed by Joseph alone) was executed prior to final settlement of the estate. The question is, whether it was intended to actually pass title as part of a compromise settlement or was merely given to the attorney for his use in settling a dispute in the event a settlement became necessary, namely, a deed to take effect only upon the happening of a future event.

Thomas Henry Noakes, who secured the execution of the deed, testified as follows: ‘I told Joseph that Mr. Boyce (Thomas's attorney) had advised that if he would sign a deed to be used if there was trouble connected with the property, that he advised Joe to make out a deed, or sign a deed and return to him in the event that...