Price v. Nellist

• Decision Date: 06 January 1947
• Docket Number: No. 91.,91.
• Citation: 25 N.W.2d 512,316 Mich. 418
• Parties: PRICE v. NELLIST et al.
• Court: Michigan Supreme Court

316 Mich. 418

25 N.W.2d 512

PRICE

v.NELLIST et al.

No. 91.

Supreme Court of Michigan.

Jan. 6, 1947.

Appeal from Circuit Court, Crawford County, in Chancery; George W. Des Jardins, Judge.

Suit by Andrew J. Price against Allie I. Nellist and others to enforce an alleged trust in real estate and to obtain incidental relief. From the decree, the defendants appeal.

Affirmed.

Before the Entire Bench.

Joseph B. Legatz, of Muskegon, for appellants.

Yeo & Bilitzke, of West Branch, for appellee.

SHARPE, Justice.

This is a suit by plaintiff, Andrew J. Price, against Allie I. Nellist, Merle W. Nellist, Betty Nellist Dagen, Vivian Nellist Kimball, and John Bruun, administrator of the estate of Merle F. Nellist, deceased, defendants, to enforce an alleged trust in real estate and to obtain incidental relief.

On January 25, 1927, plaintiff, Andrew J. Price, of Roscommon, Michigan, and Merle F. Nellist, an attorney of Grayling, Michigan, entered into a land contract with Charles W. Trask, widower, and Hattie E. Trask of Kansas City, Missouri, for the purchase of certain real estate for the sum of $1000, payable $200 upon the execution of the contract and the balance of $800 to be paid in three equal annual payments with six per cent. interest. On the initial down payment on the contract, each of the vendees paid an equal amount. Payments were made on the contract reducing it to $525. In February 1930, the vendors were demanding payment of the balance due on the contract. At this time neither of the vendees was able to pay the balance. The matter was discussed by Price and Nellist with William Houghton of Roscommon. Price had been engaged in the mercantile business in Roscommon and on February 8, 1929, a fire resulted in the loss of his buildings, stock and fixtures. He executed a trust mortgage for the benefit of his creditors, which later resulted in a payment to creditors of approximately 43 per cent. of their accounts.

Houghton knew that Price had given a trust mortgage to secure his creditors and, not wanting any trouble with Price's creditors, it was proposed and decided that Price would give a quitclaim deed to Nellist and then Nellist and wife would give a mortgage to Houghton to secure a loan of $600. On February 24, 1930, Price executed a quitclaim deed to Nellist. On the same date Nellist and wife executed a mortgage in the sum of $600 to Houghton. On September 15, 1930, Houghton sold the mortgage to a partnership consisting of Henry J. DeWaele, Clarence J. Sheppard and Charles H. Dewaele. Payments were made on this mortgage from the sale of gravel and trees from the above property. On February 24, 1942, there was a balance due on the mortgage of $445.37.

On June 15, 1942, Merle F. Nellist died and John Bruun was appointed administrator of his estate. On November 21, 1942, plaintiff filed a bill of complaint in the circuit court of Crawford county in which it is alleged that Price and Nellist agreed that each would own a one half interest in the premises; that Nellist would act in the capacity of manager of the property; that each would share equally in the income from said property; that at the time plaintiff deeded his interest in the said property to Nellist, it was agreed that Nellist would hold in trust the one half interest of plaintiff; that said Nellist sold parcels of the land for which no accounting had been had; and that the administrator of the estate of Nellist has refused to make any settlement with plaintiff.

The defendants filed an answer to the bill of complaint in which it is alleged that if plaintiff ever had any claim against Nellist ti is now barred by the statute of limitations; that plaintiff has been guilty of fraudulently concealing assets from his creditors in that he willfully failed to include his alleged interest in the land involved in a trust mortgage executed by him on February 19, 1929, for the benefit of his creditors; and that plaintiff's claim for the creation of a trust rests upon parol evidence and is void.

The cause came on for trial and a decree was entered sustaining the claim that plaintiff and Nellist had entered into a joint venture, ordering an accounting and decreeing plaintiff a one half interest in the property.

Defendants appeal and urge that in the absence of fraud, mistake or accident, a grantor in an absolute conveyance, reciting a valuable consideration, cannot show by parol evidence that the grantee was to hold the lands in trust or that the grantor retained some interest in the land.

The trial court in an opinion stated: ‘* * * plaintiff and Nellist deceased acquired this property as joint adventurers for resale for profit in smaller tracts. That they consistently followed their adventure as circumstances permitted for upwards of fifteen years, and that it was terminated before completion by the sudden death of Nellist.'

A joint venture is an association of two or more persons to carry out a single business enterprise for profit. See Fletcher v. Fletcher, 206 Mich. 153, 172 N.W. 436;Hathaway v. Porter Royalty Pool, Inc., 296 Mich. 90, 295 N.W. 571, 138 A.L.R. 955.

We are not in accord with defendants' claim that parol evidence is not admissible to show that Nellist was to hold a one half interest in the lands in trust for Price. The general rule is that agreements to...