Ripley v. Seligman

• Citation: 88 Mich. 177,50 N.W. 143
• Court: Michigan Supreme Court
• Decision Date: 30 October 1891
• Parties: RIPLEY v. SELIGMAN.

50 N.W. 143

88 Mich. 177

RIPLEY v. SELIGMAN.

Supreme Court of Michigan

October 30, 1891

Appeal from circuit court, Chippewa county, in chancery; JOSEPH H STEERE, Judge.

Bill to enforce a trust by Marcus T. Ripley against Jacob Seligman. From a decree for complainant defendant appeals. Decree modified and affirmed.

Wisner & Draper, for appellant.

John A. Combs, (Hanchett, Stark &amp Hanchett, of counsel,) for appellee.

CHAMPLIN, C.J.

This suit is brought to enforce a trust under a contract of date May 9, 1870, made between the complainant and Don C Buckland, and which is in the following terms: "This agreement, made this ninth day of May in the year of our Lord one thousand eight hundred and seventy, by and between Marcus T. Ripley, of Pontiac, the party of the first part, and Don C. Buckland, of Pontiac, state of Michigan, of the second part, witnesseth, whereas, the said first party has the minutes of a large amount of pine lands on the upper peninsula of Michigan, and said second party is desirous of locating a portion of said land on shares, it is hereby agreed that said first party, for and in consideration of sufficient money and land-warrants to locate from five to ten thousand acres of said land, and in consideration of a one-fourth part of said land when located, agrees to select from said minutes from five to ten thousand acres of the best pine land, and locate the same in the name of Don C. Buckland, as soon as said second party shall furnish him the money and land-warrants to locate said land. And said second party hereby agrees to furnish said first party sufficient money and land-warrants to locate from five to ten thousand acres of said land; and said second party hereby agrees to give said first party an undivided one-fourth part of all lands selected by said first party, and taken or located in the name of Don C. Buckland. Said first party agrees to look after the land, and attend to lumbering it or selling it, as the parties may agree. Said second party agrees to furnish the money to pay the expenses and taxes. M. T. RIPLEY. DON C. BUCKLAND." The bill of complaint states that "in pursuance of this contract the complainant selected from the minutes of land which he then had the descriptions contained in the third paragraph of the bill of complaint, which appear on pages three and four of the record, and located the lands. The location was made in the name of Don C. Buckland, in May and June, 1870. Patents were afterwards issued for the lands to Don C. Buckland. On the 1st day of November, 1880, Don C. Buckland and wife, upon the recited consideration of one dollar and of love and affection, quitclaimed the whole or a portion of said lands to May E. Seligman, wife of the defendant, and daughter of Don C. Buckland." That afterwards, on the 10th day of May, 1881, May E. Seligman, upon the recited consideration of one dollar and of love and affection, made a conveyance of said lands to the defendant, Jacob Seligman. That afterwards, and on the 24th day of October, 1885, Don C. Buckland and his wife, upon the recited consideration of one dollar, quitclaimed to the defendant certain specified descriptions of land, being the same lands, in whole or in part, which were intended by Buckland to be contained in the deed to his wife, May E. Seligman, which deed contains the following: "The above descriptions, which were omitted by error in deed dated November 1, 1880, executed by D. C. Buckland and Sarah E. Buckland, his wife, to May E. Seligman." The bill further sets up that Don C. Buckland died in the month of September, 1888, leaving a last will, which was probated in the probate court of Oakland county on the 15th day of October, 1888. That he left surviving him his widow, who was made executrix of the will, and she, after the death of her husband, executed a conveyance of said lands to said Jacob Seligman. That by the conveyance made by Don C. Buckland to his daughter, and through his conveyance to Jacob Seligman, and by means of the will and conveyance made as aforesaid to Jacob Seligman, and the conveyance made by May E. Seligman to Jacob Seligman, the title to all said lands had become vested in and is held by the said Jacob Seligman. And they charge that Seligman took the conveyances with notice of his rights in the undivided one-quarter of the lands; that the conveyances were made without his assent, and that Jacob Seligman holds them in trust for the complainant; that he has requested Seligman to execute to him a deed of the undivided quarter of the lands mentioned in the bill, and he has refused to do so. He prays that a decree may be made declaring him the equitable owner of and entitled to an undivided one-quarter of the lands described in his bill, and that such undivided one-quarter of said lands are held in trust by Seligman for the complainant, and that said trust be declared and established, and Seligman decreed to convey the undivided quarter of the lands to complainant, or that the whole lands be sold, and the proceeds divided, if that shall be for the greater mutual advantage of the complainant and Seligman.

The defendant, Jacob Seligman, answered the bill of complaint, in which he denied all knowledge of the agreement set forth, and says that for more than 15 years past preceding the death of said Buckland he was on intimate terms with him, both socially and in business matters; that they transacted a very large amount of business together, relating to pine lands in the upper peninsula of Michigan, and in all his dealings and intercourse with him he never heard that any such agreement was outstanding, or that complainant had any interest in any of the lands described in the bill, and says that whatever interest complainant had in such land originally was fully settled for and discharged between the complainant and Buckland many years before Buckland died. He says that he knew that Buckland had deeded an undivided interest in said lands to May E. Seligman, the defendant's wife, but at no time prior to Buckland's death did complainant claim or intimate to defendant or to May E. Seligman that he had any interest in any of said lands, notwithstanding he saw the complainant several times a year for a good many years before Buckland died; that in November, 1880, Buckland sold and conveyed to the defendant's wife, May E. Seligman, an undivided half of said lands on consideration that she would pay the taxes on all of them for the future; that the defendant, for her, has ever since the year 1880 paid the taxes, amounting to upwards of $4,000; that the wife of defendant was a bona fide purchaser of the half of said lands, and at no time until after the death of her father did she know or hear of the complainant's having or claiming to have any interest in any of said lands. The deed to her was recorded January 24, 1884. On the 26th of January, 1884, she conveyed an undivided half of said lands to defendant in consideration of the taxes he had paid thereon, and to enable him to handle and dispose of said lands; but at the time he paid such taxes, and at the time he received said deed, and at no time since the death of Buckland, did he know of or hear in any way that the complainant claimed an interest in any of said lands. That after Buckland had so deeded an undivided half of said lands to his daughter he remained owner of the other undivided one-half, and by his last will and testament he devised that half to his wife. That he died in September, 1888. His will was probated on the 8th day of November of that year, and that he purchased of Sarah A. Buckland, the wife of said D. C. Buckland, the other undivided one-half of said land, paying therefor upwards of $15,000, and at the time he so purchased and paid he did not know or have any notice, nor did he even hear, that complainant claimed any interest in said lands, and he denies that he has any. The defendant submits that he is a bona fide purchaser of said lands, and holds the same free from any right of complainant thereto by reason of anything contained in said contract, even if said complainant and said Buckland had not discharged and adjusted the matter long ago; and he claims that whatever rights and interests complainant may have had in such lands, if any, at some time prior to the death of Buckland, he cannot now at this late day assert any claim thereto as against the defendant, but must be left to his remedy, if he has any, against the estate of said Buckland, which is entirely solvent. That the long and unexplained laches and delay on the part of the complainant in claiming any interest in said lands or in asserting the same during the life-time of said Buckland is a complete answer to the claim that said complainant has now made, and this defendant asks and claims the benefit of the statute of limitations, the same as if he had formally pleaded the same.

The testimony was mainly taken in open court, and, upon hearing the court below granted the relief prayed for by the bill. Upon hearing the appeal in this court the counsel for the defendant insisted that the first step to be taken is to strike out from the record all testimony given by the complainant as a witness in his own behalf, which, if true, must have been equally within the knowledge of Don C. Buckland, deceased, in his life-time. We fully agree with counsel for defendant, and have laid aside entirely the testimony of the complainant as to all matters which, if true, must have been equally within the knowledge of Mr. Buckland, unless its admission has been waived by defendant. It is claimed by counsel for the complainant that in several instances defendant has waived the prohibition of the statute by not objecting to the introduction of testimony. While we have held that the...