Redding v. Lamb

• Decision Date: 06 June 1890
• Court: Michigan Supreme Court
• Parties: REDDING v. LAMB.

45 N.W. 997

81 Mich. 318

REDDING v. LAMB.

Supreme Court of Michigan

June 6, 1890

Appeal from circuit court, Berrien county.

Orville W. Coolidge and Edward Bacon, for appellant.

Van Ripper & Worthington, for appellee.

LONG J.

This is an action of assumpsit, and was tried before the court without a jury. The action was upon a promissory note. Defendant pleaded the general issue, and gave notice of certain matters of recoupment, which are sufficiently set out in the findings of the court below, which are substantially as follows:

"(1) Benjamin Wilson, who died intestate, was seised in fee, at the time of his decease, of 40 acres of land in Berrien county, Mich., being the N.E. quarter of S.W. quarter of sec. 13, town 8 S., R. 19 W. (2) On March 13, 1885, Emma C Pierce and Eva V. Jakeways, being the only heirs of decedent owned an undivided half each of said lands, subject to plaintiff's right of dower, who was the widow of decedent, and her dower never having been assigned. (3) Plaintiff and the two heirs in question had agreed to sell the land to Jacob Imhoff for $1,500, and in anticipation thereof a deed had been executed by plaintiff and Mrs Pierce, but not delivered. Mrs. Jakeways was to have joined in the execution of the deed on March 13, 1885, upon which the deed was to be delivered to Imhoff at the village of Buchanan. The deed contained three covenants, viz., of seisin, against incumbrances, and of warranty. Plaintiff was described as widow, and the other two grantors as heirs, in such deed. (4) Plaintiff and Mrs. Pierce resided in the village of New Troy, and about nine miles north-west of Dayton, where the defendant lived. Mrs. Jakeways' residence was a few miles to the south of Dayton. (5) Defendant learned of the contemplated sale to Imhoff through the husband of Mrs. Jakeways, and, being desirous of securing the land himself, because of the timber growing on it, accompanied Jakeways to the village of New Troy on March 13, 1885, to accomplish such purpose. (6) Upon reaching the village, they met plaintiff and Mrs. Pierce, and also the husband of the latter. After some haggling over the price, the two women present were induced to sell to the defendant rather than to Imhoff; the price agreed upon being $1,550. The land was wild and uncultivated, and it was understood by those present that defendant was led to purchase the land because of the timber on it, and that he was anxious to secure the entire tract. (7) The defendant believed that plaintiff owned one-third of the land in her own right, and that the two heirs owned one-third each. It does not appear that plaintiff was apprised of this belief, nor does it appear that defendant was led to entertain such by reason of any representations made by Mrs. Pierce or her mother. Defendant made no inquiries of plaintiff as to the extent of her individual interest in the land, but contented himself by asking her whether the title to the land was perfect. Plaintiff, believing that the question referred to the strength and validity of the title in her two daughters, and to her right to claim dower, assured him that the title was perfect, upon which assurance defendant relied, and waived the production of an abstract of title. (8) It seems to have been believed by all present at the time that Mrs. Jakeways would join in the execution of the deed when presented to her, as a matter of course; and her refusal, nor yet a possibility thereof, does not appear to have been anticipated by even the defendant. While it is evident that defendant was led to this belief by reason of assurances given by Mrs. Jakeways' husband, Mrs. Jakeways had not authorized her husband to act for her. Nor did either Mrs. Pierce or the plaintiff assure defendant that Mrs. Jakeways would sign the deed. While all believed that the latter would execute the deed, those actually executing it intended thereby to convey outright their several interests in the land to the defendant, independent of anything Mrs. Jakeways might do, or without meaning to either profit or incur liability by reason of any default upon the part of the latter. There was no intention on either side to cancel the entire deed in case of such default. (9) Instead of drafting a new one, the Imhoff deed was brought into requisition, and made to do service. The amount of consideration and name of grantee appearing in such deed were changed to correspond with the new arrangement, upon which the plaintiff and Mrs. Pierce duly acknowledged in the premises, although their names had been previously signed thereto. (10) At the suggestion of Mrs. Pierce's husband, the purchase money was to be equally divided between the widow and the two heirs. Defendant was not a party to such arrangement; he having offered $1,550 for the forty acres, and being willing to pay such, regardless as to how it might be divided between the three vendors. (11) Defendant paid $516.66 in cash, which, under the arrangement already indicated, was appropriated by Mrs. Pierce. Two other notes of like amount each, viz., $516.66, were drafted by Mr. Pierce; one running to Mrs. Jakeways, and the other to the plaintiff. The latter note, which is the one declared on in this suit, was duly signed and delivered by defendant, and was as follows: '$516.66-100. New Troy, March 13, 1885. Eighty days after, I promise to pay to Rosalinda Redding or bearer five hundred and sixteen and 66-100 dollars, at seven per cent. from date, value received. C. H. LAMB.' A mistake was discovered in the other note as drafted, whereupon defendant declared he would take the deed home with him, and 'fix the matter up with Jakeways,' that they would attend to the second note, and that he might want a year in which to make the third payment. Upon this representation the third note was not executed on March 13th, and the deed was delivered to defendant. Within 10 days after March 13, 1885, said Emma C. Pierce died at her home aforesaid. (12) By arrangement made between defendant and Jakeways, the latter was to secure his wife's signature to the deed in a day or two, when a note of $516.66 was to be executed and delivered therefor. (13) Defendant admits that the market value of the land, March 13, 1885, was $2,500. (14) Mrs. Jakeways never executed the deed to defendant, nor did the latter ever request her to do so. Her husband, however, in pursuance of the arrangement indicated in finding 12, requested her to go to Dayton about March 17, 1885, and execute the deed; but this she refused to

do, insisting that Imhoff was entitled to the land, and that she should not disappoint him. (15) On March 17, 1885, Mrs. Jakeways conveyed her interest in the land to Imhoff for $616. (16) The land in question was sold for delinquent taxes for the year 1877, and the auditor general of the state executed a deed on November 1, 1883, in which was conveyed the entire 40 acres to one Franklin Parker. (17) The supervisor's certificate attached to the copy of assessment roll of the township in which such land is situate, and which roll is the one filed in the county treasurer's office for the year 1877, is as follows: 'I hereby certify that I have set down in the within assessment roll all the real and personal estate in the township of Galien not exempt by law from taxation, according to my best knowledge and belief, and that I have assessed it at what I believe to be the true cash value thereof. Dated May 7, A. D. 1887. PERRY NOGGLE, Supervisor.' (18) On March 19, 1885, Franklin L. Parker and wife conveyed such land by quitclaim deed to Imhoff. (19) Parker had never been in possession of the land. (20) Immediately upon securing the Parker deed, Imhoff went into possession of the entire 40 acres. (21) Defendant saw plaintiff about this time with reference to Mrs. Jakeways' action in the premises, and was told by plaintiff that she regretted her daughter's refusal to execute a deed to him. She also advised defendant to take possession of the land. Defendant tried to take possession of the land about March 27, 1885, but was prevented therefrom by Imhoff, who also continued in the possession of such land, to the exclusion of defendant, until January 15, 1886. (22) The action of Mrs. Jake ways was without either the knowledge or approval of plaintiff or Mrs. Pierce. (23) Defendant's deed was duly recorded March 27, 1885. (24) Imhoff and his wife conveyed by warranty deed to the defendant the undivided one-half of the 40 acres in question on January 15, 1886; and on the same date they executed a quitclaim deed to him by which they conveyed all their interest in the undivided half theretofore conveyed by Mrs. Pierce. For the undivided half, defendant paid $1,000. The consideration recited in the quitclaim deed is a nominal one. (25) On January 15, 1886, the fair market value of the 40 acres was $2,500. (26) On September 20, 1885, defendant made a lawful tender of $95 to plaintiff, who was then 65 years of age. (27) It is admitted by counsel that the value of plaintiff's right of dower in the 40 acres was $95. Assuming the value to have been $1,550 instead of $2,500, (the value placed upon the land by the defendant himself,) it would seem that the value of plaintiff's dower right on March 13, 1885, was $289.10; the annual interest on one-third of $1,550 being $36.17, and her expectation of life being 11.10 years. Assuming that interest did not fall due annually, but that the entire amount, viz., $401.44, would not fall due until after 11.10 years, the present value would still largely exceed the amount agreed upon, and would amount to $225.90. (28) The note in suit had no other consideration than that already indicated. (29) No part of the principal of the note in suit, or interest thereon, has been paid, and the total

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