Payne v. Avery

• Citation: 21 Mich. 524
• Court: Supreme Court of Michigan
• Decision Date: 18 October 1870
• Parties: Chauncey S. Payne v. Charles P. Avery et al

21 Mich. 524

Chauncey S. Payne v. Charles P. Avery et al

Supreme Court of Michigan

October 18, 1870

Heard October 7, 1870; October 8, 1870.

Appeal in chancery from Genesee circuit.

The bill in this case was filed in the circuit court for the county of Genesee in chancery, to foreclose a mortgage given by the defendant Avery to Payne, to secure the payment of the purchase price of the property described in the mortgage. The bond accompanying the mortgage contained conditions not set forth in the latter; and their execution and delivery were preceded by negotiations and contracts between the parties by which Avery undertook to act as a general agent in the care and sale of the mortgaged property, which contracts the complainant alleged that Avery had not performed. Henry H Crapo, Zaccheus Chase, Lucy A. Chase, James C. Wilson, Almon Reynolds, Mary Fellows, James Collins, Thomas Cole, The Garland Street Methodist Episcopal Church, The Flint & Pere Marquette railway company, and the mayor, recorder and aldermen of the city of Flint, were made parties as subsequent grantees or mortgagees.

The Flint & Pere Marquette railway company answered separately. Henry H. Crapo, Zaccheus Chase and Lucy A. Chase united in a joint and several answer, and the remaining defendants united in a joint and several answer. Replications were filed to each, and testimony taken; which, with the copies of the exhibits, occupy one hundred and twenty-nine pages of the printed record.

The hearing of the cause was submitted by stipulation to the Hon. Sanford M. Green, whose decision, it was provided, should have the same effect as if entered on a hearing of the cause on pleadings and proofs.

The decree entered upon the determination of the referee provided that Payne and Avery should each release to the other certain specified portions of the mortgaged property; and that each should procure to be released all incumbrances, liens or outstanding titles created by each since the commencement of this suit, and that such conveyances, releases and discharges, when executed and delivered should operate as a full payment and satisfaction of the mortgage, and a partition of all property embraced in it.

The complainant Payne and the Flint & Pere Marquette railway company appeal from the decree to this court.

Cause remitted to the court for the execution of the decree.

L. Walker, Wm. Newton, and G. V. N. Lothrop, for complainant.

W. L. Webber, for the Flint & Pere Marquette railway company.

C. P. Avery and C. I. Walker, for the other defendants.

OPINION

Cooley, J.

The bill in this cause sets forth that on January 23, 1856, complainant was seized and possessed in fee simple of a large quantity of land, situated in and adjacent to the city of Flint, which land was what remained unsold of a still larger quantity formerly owned by him, and from which he had made many sales, leaving at that time belonging to him about six hundred acres; that a part of this had been surveyed and platted into lots for building purposes, while another part was valuable for agricultural purposes; that some of the building lots had been built upon and the buildings rented, and some of the agricultural lands cleared, fenced and made productive; that being desirous of selling such lands and turning the same into money, and at the same time of being relieved of the care and trouble and anxiety of managing and looking after it until it should be sold, and also of selling it, and of the care and trouble of looking after and managing his property and business generally, he entered into an arrangement and agreement with the defendant Charles P. Avery, then of Owego, New York, substantially as follows:

That complainant and his wife should convey to said Avery the one undivided half of all the said lands remaining unsold, excepting therefrom his homestead and a block on which a church was situate, for the sum of twenty-five thousand dollars, to be paid out of the proceeds of the sale thereof as fast as sales should be made, either in money or securities received therefor; that said Avery should soon remove to Flint, and enter upon the business of selling and disposing of said lands, as well complainant's interest therein, as his own, and should also take charge of and do complainant's business connected with said real estate, and also aid as attorney and counsel in the defense of certain ejectment suits then pending for portions of said lands, and take charge generally of complainant's business as required, without charge, and in as short a time as possible pay off said twenty-five thousand dollars; that inasmuch as some of said real estate was productive, it was further agreed that Avery should pay complainant annual interest from that time on the value of the productive portion, and should pay annual interest upon the remainder so fast as the same or any part thereof should be made productive, by sale or otherwise; and in case Avery should retain in his own hands any of the moneys or securities received on sales, he should pay annual interest thereon to complainant until the same should be paid or delivered over; that whenever any of the productive property should be sold, and the proceeds of Avery's half thereof paid over to complainant, interest should cease on a sum equal to the amount so paid over, and Avery should thereafter pay interest on the value of so much as should remain unsold; that the payment of said twenty-five thousand dollars should be secured by the bond of said Avery and a mortgage on the undivided half of said lands so sold him, and that there should be no partition or division of said lands between the said parties.

The bill further avers that Avery was a lawyer by profession; that complainant had but recently become acquainted with him, having first seen him in December, 1855; that Avery saw and examined the lands, and was fully informed of complainant's purpose in making sale; that a schedule was made of the lands during the negotiations which led to such arrangement, and each lot valued, and that the whole land, one-half of which was sold to Avery, was then estimated at a low figure at twenty-five thousand dollars; that one undivided half thereof was well worth thirty-five thousand dollars, which was then well known to Avery, and that complainant's object in making the arrangement was to make Avery interested in the lands in common with complainant, and to secure his services as aforesaid without further charge, and to fully compensate him in the trade for his services so to be rendered; all of which was explained to, and fully understood and assented to, by said Avery; that from the previous recommendations complainant had had of Avery, he had come to consider and believe him a man of integrity and ability, fully competent to transact the business and perform the services required, and so substantially informed said Avery, and that complainant stated to him in substance that he had become satisfied with him, and had come to regard him as taking an interest in complainant's business, and was willing to consummate the arrangement with him, and in preparing the necessary contracts and conveyance, should confide all things to him, said Avery, believing that he would see to it that complainant's rights and interests were fully secured and protected; and he should neither employ nor consult any other counsel, but rely upon him alone; and that Avery assured complainant that he would at all times deal honestly and fairly with him, and in conducting the business of complainant, whether with himself or others, would look after and protect complainant's interests.

The bill avers further, that on the 22d or 23d of January, 1856, complainant and Avery went together to Detroit, at which place Avery drew and the parties executed in duplicate what Avery called the skeleton of an agreement, and which is as follows:

"This agreement witnesseth that Chauncey S. Payne, of Michigan, has agreed to sell, and Charles P. Avery, now of the same place but lately of Owego, New York, has agreed to purchase, the one undivided moiety of all the unsold portions of sections two, three and four, being a portion of Smith's reservation at the Grand Traverse, so called, on Flint river with the exception of blocks 30, 31, 48 and 49, containing about eight acres, being his homestead, the said undivided moiety amounting to three hundred acres or thereabouts, and being the same premises now occupied or claimed by the said Payne. The said Payne for himself, his executors, administrators and heirs, hereby agrees to convey such undivided moiety or half to the said Charles P. Avery, his heirs and assigns, whenever the latter shall desire, such conveyance to be made upon his return from the state of New York, such conveyance to be duly executed by said Payne and wife, and thereupon the said Charles P. Avery hereby agrees to execute and deliver to said Payne a mortgage upon the said premises, accompanied by his bond in the usual form, for the sum of twenty-five thousand dollars, payable out of the proceeds of the sales of said undivided moiety, that is to say, as follows: Two-thirds, or such other proportion, as said Avery may find convenient and practicable of the proceeds of said sales, if the same be in the form of judicious and safe securities or cash to be delivered over to the said Payne by the said Avery, to be indorsed on the said mortgage, and to go thus far in liquidation and satisfaction of said mortgage; said mortgage to be given without interest, whatever interest may accrue upon such securities, while in the hands of said Avery, before delivery of the same to the said Payne, and seven per cent upon the cash proceeds before the same is paid to said Payne to be...