Rosen v. Tackett

• Decision Date: 27 April 1923
• Docket Number: No. 120.,120.
• Citation: 193 N.W. 192,222 Mich. 673
• Parties: ROSEN v. TACKETT.
• Court: Michigan Supreme Court

222 Mich. 673

193 N.W. 192

ROSEN

v.TACKETT.

No. 120.

Supreme Court of Michigan.

April 27, 1923.

Appeal from Circuit Court, Muskegon County, in Chancery; John Vanderwerp, Judge.

Suit by Isaac Rosen against Lura B. Tackett. From a decree for plaintiff, defendant appeals. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. John G. Anderson, of Muskegon, for appellant.

Carpenter & Jackson, of Muskegon (Bunker & Rogoski, of Muskegon, of counsel), for appellee.

McDONALD, J.

This action is brought to restrain the prosecution of an ejectment suit and to have the title to the property in controversy established in the plaintiff free from all claims of dower.

On the 5th of February, 1920, Marion F. Tackett died intestate in the city of Muskegon. The property in question, known as the Tackett Block, was a part of his estate. The defendant, who is the widow, and William F. Tackett, her son, were appointed administrators of the estate. As such, on the 11th day of June, 1920, they entered into a written contract for the sale of the Tackett Block to Isaac Rosen, the plaintiff herein. In this agreement it was stipulated that, if the probate court should permit the property to be sold at private sale, they would give the plaintiff ‘a good and sufficient administrator's deed, also an abstract and tax history, showing a good merchantable title in Marion F. Tackett, now deceased.’ Nothing was said about the widow's dower interest. Permission having been obtained to make the sale, the purchase price, $55,000, was paid, conveyance was made in accordance with the agreement, and the plaintiff went into possession.

Five or six months after the transaction was closed the defendant brought an action of ejectment to recover her dower interest. Thereupon the plaintiff filed this bill. Upon the hearing a decree was entered by the circuit court, permanently restraining prosecution of the ejectment suit and quieting plaintiff's title to the premises in question. From this decree the defendant has appealed.

In support of the decree counsel for the plaintiff contend that under our statute of descent the defendant was an heir, and as she signed the deed as administrator without any reservation of dower, all interest which she had in the property thereby passed to the plaintiff; that, if not, she is now estopped from asserting dower because of conduct and representations upon which plaintiff relief, and by reason of which he was misled into believing that he was buying the property free from all claims and incumbrances.

In seeking to establish this claim the plaintiff was permitted to introduce in evidence all of the negotiations leadding up to the making of the written agreement, intending thereby to show that the defendant orally agreed to convey a title free from all liens, claims, and incumbrances. In the making of the written contract there was no fraud or duress. Plaintiff's attorney assisted in drafting it and approved it after it was drafted. It is not imperfect nor ambiguous in any of its terms. We must assume that it embraced the entire agreement of the parties. It is a familiar rule of evidence that:

‘All conversations and parol agreements between the parties prior to the written agreement are so merged therein that they cannot be given in evidence for the purpose of changing the contract or showing any intention or understanding different from that expressed in the written agreement.’ Jones, Evidence,. (Blue Book) vol. 3, c. 15.

And this is so, though the parol understandings induced the making of the written contract. Gates v. Detroit & Mackinac Ry. Co., 147 Mich. 523, 111 N. W. 101.

This testimony, which was received over defendant's objection, was not competent, and must be excluded from our consideration. The written agreement should be taken as the best evidence of the intention of the parties. It shows that it was made and executed by the defendant in her representative capacity as administratrix. It did not provide for a title free from her right of dower. The agreement was that she should show a good merchantable title in Marion F. Tackett, deceased. She furnished such a title. It further provided that she would give ‘a good and sufficient administrator's deed.’ She gave such a deed, reciting the conveyance of ‘all the estate, right, title, and interest of the said Marion F. Tackett, deceased.’ This deed vested in the plaintiff only the title which the intestate had, and which upon his death descended to his heirs. It did not affect the widow's right of dower, unless she had elected to take as an heir, in which event she would have no dower, and the deed would be sufficient to pass all of her interest in the property. Our statute of descent, so far as it is applicable to this question, reads as follows:

C. L. 1915, § 11795:

‘Section 1. When any person shall die seized of any lands, tenements or hereditaments, or of any right thereto, or entitled to any right therein in fee simple, or for the life of another, not having lawfully devised the same, they shall descend, subject to his debts, in the following manner:

‘First. One-third to his widow and the remaining two-thirds to his issue. * * *

‘Fifth. The provision hereinbefore made for the widow shall be in lieu of her dower and homestead rights, unless she shall, within one year after letters of administration have been granted upon the estate of her deceased husband, begin proceedings for the assignment to her of such dower and homestead, in which case her interest in the lands of her deceased husband shall be limited to such dower and homestead, and the residue of such estate then descend as herein provided for the portion thereof not taken by such widow. * * *’

Under this statute in a contingent sense only was she an heir. She might elect to take a dower interest by beginning proceedings for the assignment of her dower. She had not made her election at the time of the sale, and the statutory period in which she might do so had not expired. Therefore her right of dower was not affected by the deed which conveyed only the title vested in the heirs. If, however, by her acts and conduct she impliedly represented that she was an heir, or was taking an heir's interest instead of dower, and the plaintiff relying thereon made this contract, accepted the administrator's deed and paid the full value of the property, we think it would be a fraud upon his rights to now permit her to maintain her dower.

Counsel for the defendant contends that the rights and interest of the parties must be determined solely from the contract and deed; that because of these writings verbal acts which might constitute an estoppel cannot be shown. It is true that these written...