Stephens v. Leonard

• Decision Date: 02 December 1899
• Citation: 122 Mich. 125,80 N.W. 1002
• Court: Michigan Supreme Court
• Parties: STEPHENS v. LEONARD et ux.

80 N.W. 1002

122 Mich. 125

STEPHENS v. LEONARD et ux.

Supreme Court of Michigan

December 2, 1899

Appeal from circuit court, Wayne county, in chancery; Robert E Frazer, Judge.

Suit by Albert L. Stephens against Henry R. Leonard and wife to foreclose a mortgage. Decree for complainant. Defendants appeal. Affirmed.

George W. Radford, for appellants.

Wells Angell, Boynton & McMillan, for appellee.

MONTGOMERY J.

In 1894 the Leonard & Carter Furniture Company purchased from Thomas T. Leete and wife, on land contract, 30 feet front on Gratiot avenue, Detroit (referred to in the record as the 'Gratiot Avenue Property'). The purchase price was $40,000, upon which $5,000 was paid down. The defendant Henry R. Leonard on the 1st of April, 1890, had bought from the trustees of the Brush estate a lot on Elliot street, Detroit (called in the record the 'Elliot Street Property') at the price of $5,830, only $830 of the purchase price having been paid. The furniture company had erected a building on the Gratiot avenue lot at a cost of about $60,000, and Mr. Leonard had built a residence on the Elliot street property. In February, 1895, Mr. Leonard desired to purchase the interest of the Leonard & Carter Furniture Company, and, in order to raise the money to do so, gave the complainant the securities in question in this case to secure a loan of $40,000. It appears that the trustees of the Brush estate had assigned the contract for the Elliot street lot to the State Savings Bank, and had executed a deed running to Leonard, which was left at the bank, to be delivered when the payments were completed. To secure complainant, the contract from Leete to the Leonard & Carter Furniture Company was assigned by it to Leonard, and by Leonard to complainant. The deed of the Elliot street lot from the trustees of the Brush estate to Leonard, which had been prepared, but not delivered to Leonard, was destroyed, and a new deed made by the trustees direct to complainant, complainant paying the unpaid purchase money. Mr. and Mrs. Leonard signed the following authority: 'Detroit, February, 1895. Trustees Brush Estate: We hereby surrender to you deed dated February 8, 1893, conveying to Henry R. Leonard lot 15, and the easterly 3 feet of lot 14, in block 10, Brush Farm, and instruct you to make a deed for the same described premises to Albert L. Stephens, of Detroit, Michigan. [Signed] Annie E. Leonard. Henry R. Leonard.' Eight promissory notes, in the sum of $5,000 each, were executed by Mr. Leonard, and an agreement was signed by the parties, in which, after reciting the above-named transfers to Stephens and the advances for which they were security, it was provided, among other things, that, upon payment of the first three of the notes, the Elliot street property should be reconveyed to Leonard. This agreement also provided that Leonard should pay all the taxes, and should keep the property insured, $10,000 on the Elliot street house, and $30,000 on the Gratiot avenue building, with loss, if any, payable to Stephens. On the 17th of October, 1897, the store building on Gratiot avenue burned. Only $10,000 insurance was carried on the building, and this proved valueless. Mr. Leonard defaulted in his payment, and complainant files this bill to foreclose.

There is only one disputed question of fact which we regard as material in disposing of the case. It is claimed by Mrs. Leonard that she signed the authority to the trustees of the Brush estate above quoted without understanding the purpose for which it was to be used. Indeed, she testifies that she has no recollection of having signed the paper; that she at times did sign papers presented to her by her husband without reading them, and she seems unable to account for her signature to this paper, except on the hypothesis that this was one of the occasions. The complainant testifies that, in company with Mr. Hayes, president of the Preston National Bank, he called at the Leonard home, and that the subject of the loan was fully talked over in the presence of Mrs. Leonard, and her attention specially called to it. In this he is corroborated by Mr. Hayes. Mr. and Mrs. Leonard deny that any such interview took place. A careful reading of the testimony convinces us that Mr. and Mrs. Leonard are at fault in their recollection on this point, and that Mrs. Leonard did fully understand the nature of this transaction, and assented to it, so far as it affected the Elliot street house, by signing the authorization above referred to. The court decreed foreclosure, and defendants appeal.

It is contended that the defendant Annie E. Leonard had a dower interest in the Gratiot avenue lot, which is not cut off by the assignment of the contract; that she not only has a dower, but a homestead, interest in...