Peaslee v. Collier

• Decision Date: 05 December 1890
• Citation: Peaslee v. Collier, 83 Mich. 549, 47 N.W. 353 (Mich. 1890)
• Court: Michigan Supreme Court
• Parties: PEASLEE v. COLLIER et al.

47 N.W. 353

83 Mich. 549

PEASLEE v. COLLIER et al.

Supreme Court of Michigan

December 5, 1890

Appeal from circuit court, Kent county, in chancery; WILLIAM E GROVE, Judge.

Sweet & Perkins, for appellant.

Fletcher & Wanty, for appellees.

CAHILL J.

This is a bill filed in aid of execution. Complaint recovered two judgments against defendant Isaac Collier, which, with the taxed costs, amount to $515. Executions issued upon these judgments, and were levied upon lot 14 of Colton's subdivision of Holbrook's addition to the city of Grand Rapids. The premises are claimed by the defendants as their homestead, and are subject to a mortgage of $1,250, but complainant alleges in his bill that the premises are worth more than $3,000. On April 8, 1889, defendant Isaac Collier conveyed the premises in question to his wife, Anna Collier and complainant seeks to have this deed set aside as fraudulent. Defendants answered admitting that the premises were a homestead; state that they were mortgaged for $1,250 and interest; claim that they were not worth more than the homestead exemption and mortgage; deny all fraud and allege a full consideration for the deed from Isaac to Anna Collier. The facts gleaned from the record show that the judgments recovered by complainant against defendant Isaac Collier were for groceries furnished to his family. Defendant Isaac Collier had spent most of his time for a year or more in Battle Creek, where he was engaged in the insurance business, but his family occupied the homestead in Grand Rapids. He was possessed of some real estate in Battle Creek which, during the fall of 1888, he had contracted to exchange for some patent door-bell stock, but his wife was unwilling to sign the deed unless he would deed her the homestead in Grand Rapids. This, it appears, he was willing to do, but no steps were taken to carry out this arrangement until after complainant commenced his suits in justice court. Complainant recovered judgments before the justice on Monday, April 8, 1889. On Saturday, April 6th, defendant Isaac Collier executed to his wife the deed of the homestead, including also certain lands in Iosco county. At the same time, Anna Collier, the wife, joined with her husband in deeds of the Battle Creek property, whereby she released her right of dower. These deeds, although drawn up on Saturday, were not executed and delivered until Monday morning, April 8th. It is this deed of the homestead so made by Isaac to Anna Collier that complainant seeks to have set aside in this suit. He claims that it was made without consideration and for the purpose of preventing him from collecting his judgments. On the other hand, the defendants claim that such deed was executed in pursuance of the agreement made between the parties to it some months prior thereto; that the release by Mrs. Collier of her right of dower in the Battle Creek property was a valid and adequate consideration for the interest which she secured by the conveyance from her husband to herself, so far as the homestead is concerned. The burden of proof is upon the complainant to establish the fraudulent character of this deed. The only evidence in the record tending to show such fraud is the fact that such deed was made during the pendency of complainant's suits, and when he was about to procure judgments, and the testimony of Mr. Palmer, the conveyancer, who drafted the papers between the Colliers. Being called as a witness for defendants, on cross-examination, he testified as follows: "Question. During the time that you were receiving instructions for and drawing these papers, and while the negotiations were being carried on and completed, was anything said by any of you in regard to Mr. Peaslee's claim? Answer. There was. Q. Who said it, and what was it? A. Mr. Collier asked me if there would be anything wrong in his deeding the property to Mrs. Collier under the circumstances; that is, while Mr. Peaslee's suit was pending. I told him that he had a perfect right to deed his homestead to Mrs. Collier, and that he had a right to deed any property that he chose to her for a bona fide consideration. That is all I distinctly remember in regard to the conversation; that is the effect of what was said. Q. It is a fact, is it not, Mr. Palmer, that one of the objects of making the conveyance that Saturday night, and recording it early Monday morning, was the expectation or the fear that if that was not done it would be levied on by Mr. Peaslee? A. I think that Mr. Collier was afraid that the property might be levied upon and sold at a forced sale, and that he did not want to have it sacrificed, and was not in a position to pay the debt in cash; but it was understood at this time that I should offer Mr. Peaslee security. That is the security that I have referred to. Q. Was not Mrs. Collier afraid of the same thing that you have mentioned in speaking of her husband? A. So far as that is concerned, Mrs. Collier told me that she did not know how t...