Tobey v. Tobey

• Decision Date: 10 April 1894
• Court: Michigan Supreme Court
• Parties: TOBEY v. TOBEY et al.

58 N.W. 629

100 Mich. 54

TOBEY v. TOBEY et al.

Supreme Court of Michigan

April 10, 1894

Appeal from circuit court, Montcalm county, in chancery; Vernon H Smith, Judge.

Bill by Addie L. Tobey against Archer R. and Samuel H. Tobey for separate maintenance. Decree for complainant. Samuel H. and complainant appeal. Affirmed.

N. O. Griswold (Fitz Gerald & Barry of counsel), for appellant Samuel H. Tobey. Ellsworth &amp Rarden, for appellee.

McGRATH C.J.

Complainant is the wife of Archer R. Tobey, and defendant Samuel H. is father of Archer R. This bill is filed to compel the husband to make proper and suitable provisions for the support of the wife and her infant child, and joins Samuel H., alleging that certain fraudulent conveyances have been made by the husband to his father in fraud of complainant's rights. The court below gave a decree for complainant, from which Samuel H. and complainant appeal.

Upon a careful examination of the record, we are entirely satisfied that the evidence justified the conclusions arrived at by the court below upon the merits. The parties were married May 21 1890; and on May 24, 1890, Samuel H. conveyed to Archer R. 80 acres of land, valued at $4,000. On October 29, 1890, complainant was induced to join with her husband in a deed of this land back to Samuel H. No consideration passed from father to son for this conveyance, but complainant alleges that she was induced to join in the conveyance by representations made that the purpose was to purchase other land, or use the avails in mercantile business. Afterwards, on October 31, 1890, 40 acres of land, of the value of about $2,000, were purchased in the husband's name; and complainant and her husband went into possession of the land so purchased, and occupied it as a homestead until the time of the final separation, January 27, 1892. Samuel H. furnished the major portion of the money with which this purchase was made, except that the land was bought subject to a mortgage of $600. The evidence tends to show that Samuel H. was to take up this mortgage. After the separation of the parties, and on February 2d, the husband gave a mortgage upon this 40 acres to his father, for $1,000, and it is alleged that this mortgage was given to secure the moneys advanced by Samuel H. with which to make the purchase. Samuel H. afterwards sold the 80 acres of land first referred to, and procured the assignment to himself of the mortgage of $600, and commenced proceedings to foreclose both mortgages. The decree directed the husband to pay to complainant a specific sum each year, in half-yearly installments, and makes the decree a lien upon the 40 acres of land, giving it priority over the mortgages held by Samuel H.

It is insisted that Act No. 243 of the Public Acts of 1889 does not authorize the creation of the lien; but the second section of the act empowers ...