Quirk v. Thomas

• Decision Date: 09 December 1858
• Citation: 6 Mich. 76
• Court: Michigan Supreme Court
• Parties: Edmund Quirk v. Almon Thomas and others, and John Greusel v. The Same

6 Mich. 76

Edmund Quirk v. Almon Thomas and others, and John Greusel v. The Same

Supreme Court of Michigan

December 9, 1858

Heard October 8, 1858; October 13, 1858; October 14, 1858 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Appeals by defendants from the Wayne Circuit in chancery.

The facts in the two cases being substantially the same, and the testimony identical, they were heard and decided together.

The bill in the first entitled cause sets forth, that on the 14th day of February, A. D. 1848, Thomas Alanson Thomas (called hereinafter Alanson Thomas), claiming to own, and being possessed of and controlling, a tract of land containing fifty acres, in the bill particularly described, and situated in Dearborn, Wayne county, proposed to sell the same to complainant, and that complainant, believing the land to belong to said Alanson, purchased the same of him for the consideration of $ 480 in hand paid; that said Alanson and his wife executed to complainant a conveyance thereof, of the date aforesaid; that complainant immediately went into possession of said premises, and has continued to occupy the same to this time; that at the time of said conveyance, said Alanson lived upon, and occupied and controlled the farm of which said premises were a part, and so had ever since the year 1838; that Aaron Thomas, the father of said Alanson, lived on the said farm, near the residence of said Alanson, at the time of said purchase, and that, at that time and long previous thereto, and up to the time of his death, which occurred in May, 1847, said Aaron stated and gave out, that he held and owned no interest in said farm, but that he had sold and conveyed the same to Alanson, and said Alanson also claimed that he owned and held the same by title derived from his father. The bill further sets forth, that on the 18th day of June, 1838, said Aaron was the owner of said farm in fee simple, and proposed to sell the same to said Alanson for $ 5,000, which proposition was accepted; and said Aaron, with the intent and design of conveying the whole of said farm to Alanson, executed and delivered to him a deed, expressing therein a consideration of $ 5,000; which said deed was signed by Betsey Thomas, wife of said Aaron, now Betsey DeLong, with the design of relinquishing her right of dower in said farm; that the description in said deed, was taken from the original patent from the United States of the said farm, and that it was executed, delivered, and received, in the full belief by all the parties, that the whole land patented, except about 100 acres previously sold, was thereby conveyed; that the whole premises embraced in the patent (all of which, except the parcel before sold, was intended to be conveyed by said deed) included 437 6-100ths acres, but, by a mistake in drafting said deed, a number of courses and distances were wholly omitted, in consequence of which a small fraction only of the farm was in fact conveyed; that Alanson Thomas caused said deed to be recorded, and continued in possession under it of the whole land, except the portions from time to time sold by him, until his death, which occurred October 1st, 1850; and that both he and Aaron Thomas died without any suspicion of the said mistake; that Aaron uniformly, in speaking of said premises, gave out and represented that he had conveyed the same to Alanson; and in a certain suit in the Wayne Circuit Court, wherein Ebenezer Hurd was plaintiff and said Aaron defendant, and also in a certain proceeding in the Court of Chancery, in favor of Philip Warren against Aaron and Alanson, said Aaron made oath that he had conveyed all his interest in the premises to Alanson; that complainant purchased that portion of said farm bought by him, and paid for the same, in good faith, and before said mistake was discovered; that in fact the discovery of the mistake was first made by Titus Dort, administrator on the estate of said Alanson, in the year 1851; that since the discovery of such mistake, the widow and heirs of said Aaron have procured the appointment of the defendant David McGibbon, by the Probate Court of Wayne county, as administrator on the estate of said Aaron, and that said administrator now claims that the premises so sold to complainant belonged to the estate of said Aaron, and has applied to the said Probate Court for license to sell the same as the property of said estate; that said administrator has also brought, in the Wayne Circuit Court, an action of trover for wood and timber appropriated by complainant to his use, from said premises.

And complainant prays for a correction of said mistake, so far as it affects the premises so purchased by him; that the widow and heirs at law of said Aaron (who are made defendants) be restrained from disturbing complainant in the possession of said premises; that the said administrator be enjoined from further proceeding on his application for license to sell the said land, and from further prosecuting said action of trover, and for other and further relief.

The bill in the second case is substantially the same--complainant's purchase being made September 7th, 1850, and including about forty acres.

Preliminary injunctions were issued as prayed, to restrain the legal proceedings being taken by McGibbon.

To these bills Betsey DeLong filed a disclaimer, she having released to Alanson subsequent to the decease of Aaron, her former husband. Several of the heirs were infants, and filed, by their guardian ad litem, the usual general answer. Two were non-residents, and did not appear, and the others answered, denying many of the facts set up in the bill, and alleging that the deed of June 18th, 1838, was made to defraud the creditors of Aaron Thomas, and that complainants bought with notice of that fact, as well as of the mistake.

McGibbon defended by plea and answer. He alleged that the last mentioned deed was given by Aaron, and accepted by Alanson, for the sole and only purpose of hindering, delaying and defrauding the creditors of Aaron, who was then largely indebted; that no consideration whatever was paid for the same, and that nothing was ever said, sworn, or done, by said Aaron or Alanson, tending to show a sale of said lands, except for the purpose of consummating the said fraud, of all which complainants had notice before their respective purchases.

The causes having been put at issue, testimony was taken therein, in substance as follows:

Thomas A. Sweeney had a demand against Aaron Thomas, and called for payment. Aaron told him he had sold all his property to Alanson, who was to pay the debts. Witness then went to Alanson, who paid the demand. This was in 1841. He had another demand against Aaron, which originated in 1841, and was paid by Alanson in 1849. He frequently talked with both Aaron and Alanson about the property after 1838, and the story they always told was that Alanson owned it. He frequently bought farm produce there, and was always directed by Aaron to Alanson as the owner. The common report in the neighborhood was that Alanson owned the property, and from that report he should not have hesitated in going to Alanson to buy the farm which Aaron had formerly owned. Aaron lived on the premises, in what was called the old homestead, until he died. Alanson lived in the family with his father until after he was married, in 1839 or 1840. Alanson had sore eyes for several years. It was whispered in the neighborhood that Aaron conveyed the property to Alanson to keep it beyond the reach of Dr. Hurd, who was a creditor of Aaron.

Josiah Dort had heard both Aaron and Alanson say, between 1838 and 1844, that the farm belonged to Alanson. Aaron frequently said in public places that he had sold his old farm to Alanson, and the farm was reputed to belong to Alanson after 1838. Alanson's eyes were at times so bad as to unfit him for business. Witness does not know that Alanson had any property previous to the farm being deeded to him. Some of the neighbors said the property was conveyed to Alanson to keep it away from creditors, and some denied it. Complainant Quirk moved into the neighborhood in 1831, and has lived there ever since.

John McVay worked more or less on the farm every year after 1825; after the farm was said to have been sold to Alanson, witness was paid for the labor by him. Alanson managed the farm after that, and Aaron frequently said he had conveyed to Alanson. If any one applied at the farm to purchase anything, he was referred to Alanson. About a year before Aaron died, when the collector called for the taxes, Aaron told him he had nothing to do with it, and sent him to Alanson. Aaron told the witness he conveyed the farm to Alanson to keep it away from Dr. Hurd, who wanted to rob him. Does not know that Alanson had any property previous to the farm being conveyed to him.

Titus Dort knew Aaron and Alanson Thomas. The former died in February, 1847, and the latter in October, 1850. All the public transactions after June, 1838, were in the name of Alanson, and Aaron always said Alanson owned the farm, and had the management of it. When Aaron did business, he represented himself as agent of Alanson. From 1838 to the death of Aaron, it was common public report that Alanson owned the place. Witness was supervisor of Dearborn in 1844 and assessed the property to Alanson, by direction of Aaron, except a span of horses and a wagon, which Aaron claimed as his own. In 1839, Isaac Sherman commenced an action of...