Tong v. Marvin

• Decision Date: 08 November 1862
• Citation: 15 Mich. 60
• Court: Michigan Supreme Court
• Parties: Elizabeth Tong, by next friend, v. Henry Marvin and others

15 Mich. 60

Elizabeth Tong, by next friend, v. Henry Marvin and others

Supreme Court of Michigan

November 8, 1862

October 19, 1862; October 20, 1862, Heard [Syllabus Material]

Appeal from Huron circuit, in chancery.

The bill in this cause was filed by complainant, through her next friend, against her guardian, Lucius Marvin, and other defendants, charging fraud in the sale of certain real estate, and praying that the same might be set aside.

The bill also prayed that a certain deed of the premises obtained from her father by the purchaser at a certain guardian sale through fraudulent representations, might be set aside, and the title thereto declared to be vested in her.

Defendants demurred to the bill.

The demurrer was sustained, and the bill dismissed.

The facts necessary to an understanding of the cause appear in the opinion.

Decree of court dismissing the bill reversed, the demurrer overruled, and the cause remanded with leave to defendants to answer on payment of the costs of this court and ten dollars costs in the court below.

Wm. L Webber, for complainant:

1. The deed of Proctor Tong, of June 1st, 1857, conveyed no title. He had not an estate by the curtesy in the land.

a. The statute of 1855, for the benefit of married women, in connection with the constitutional provision and other legislation on the subject, has repealed the old statute which gave an estate by the curtesy. The real estate of the wife continues to be hers, and may be disposed of as if she were unmarried. Under the old statute she could not devise it so as to prevent curtesy. If she may do so now, the old statute is changed in that respect; and there can be no curtesy initiate before the death of the wife, nor consummate on her death; but her estate descends, in the absence of a will, free from curtesy, the same as her devise would do if she had made a will. By the former law, as the wife could not sell without her husband's consent, so she could not deprive him of his curtesy, but now it is at her option whether she will convey in her life time or devise the same, and it would be strange, indeed, if the estate by the curtesy should depend on the mere accident of will or no will.

b. The mortgage was made April 16th, A. D. 1839, and was due April 16th, A. D. 1842. By the law, as it then stood, the mortgagee held the title. When, in 1845, Timothy L. Howe died, Thaddeus, and after him, in 1855, Olive B., his mother, inherited a mere right to redeem; she was not seized of the land, and the mortgage was in full force, and the title remained in the mortgagee until after her death, in 1857. To Elizabeth descended a mere right to redeem, to which curtesy could not attach: 2 Comp. L., § 2803.

c. If Proctor Tong had an estate by the curtesy, by making the deed to Daniel Marvin, he forfeited his entire estate, and Elizabeth had an immediate right of entry: 21 Me. 372; 1 Greenleaf Cruise, tit. v, chap. 2, § 31.

2. But even if the deed of Tong did convey a life estate to Marvin, it affords no reason why this bill should be dismissed. It goes only to the extent of the relief. The guardian's deed should be set aside, in order that when the life estate shall cease, the complainant's estate in fee may be clear from any and all incumbrance.

Mitchell & Farrand, for defendants:

1. It appears by the bill, that Proctor Tong, the guardian, had the actual right to the present possession of the land, as tenant by the curtesy; and, if so, the complainant has no present right that she can enforce by bill or otherwise. He being tenant by the curtesy, her right must remain in abeyance, until his death; and, until then, she has no more right with, or control over the land, than a mere stranger, and certainly no possessory right: Comp. L., §§ 2803 and 3291.

The husband, Proctor Tong, being tenant by the curtesy, had a full right to convey, as the bill states he did, his life estate to the ancestors of the defendant: 2 Mich. 93.

Proctor Tong, the tenant by the curtesy, having conveyed his rights to the ancestor of the defendants, neither the complainant nor any one else can interfere with their possession, or possessory rights during his life.

He alone can take advantage of any fraud in that conveyance.

2. While the bill assumes fraud, it makes no statement of facts showing fraud, or out of which fraud may be presumed. The mere charge or statement of fraud, or fraudulent intent, without a statement of facts of themselves, showing fraud or fraudulent intent, is not sufficient. There must be something more than assumption or presumption.

The mere allegation that the deed was procured from Proctor Tong fraudulently, is of no avail, without showing in what the fraud consisted. But even if it was fraudulent, as to him, the complainant can not take advantage of it.

There is no fraud alleged in procuring the guardianship, and no intent of fraud charged in executing the guardianship: 3 Mich. 531.

Cooley, J. Campbell and Christiancy, JJ. concurred. Martin, Ch. J. concur in the result.

OPINION

Cooley J.:

The demurrer in this case is supposed to be sustainable on two grounds: 1. That the bill, in charging fraud, merely sets forth conclusions, without giving such facts as would warrant the conclusions. 2. That even admitting the case made by the bill to be true, the complainant is not entitled to relief, inasmuch as the outstanding life estate of Proctor Tong, as tenant by the curtesy, has become vested in the defendants by means of the quit-claim deed to Daniel Marvin.

The bill, in order to show fraud, recites the following facts: That the mother of complainant, being seized of the title to the land in controversy, died in 1857, leaving surviving her, Proctor Tong her husband, and this complainant, her sole heir at law, both residing in the state of New York; that the premises, which were situate in Huron county, were at that time subject to a mortgage, which was foreclosed by advertisement June 9, 1857, and the land sold for $ 675.93; that Daniel Marvin was desirous of becoming the owner of said land, and of depriving complainant thereof, and for that purpose procured an order from the probate court of Tuscola county--to which Huron was then attached--appointing his son, Lucius S. Marvin, guardian for complainant; that he then loaned said Lucius the money to redeem the premises from said foreclosure sale; that thereupon said Lucius petitioned the probate court for license to sell said lands, representing that complainant had no other property out of which he could be re-imbursed said redemption moneys; that license was granted for that purpose, and a sale made August 7, 1858, to said Daniel Marvin for the sum of $ 925; that a report of sale was made, showing the expenses to have been $ 204.19, which, together with the redemption moneys, exceeded the sum for which the land was sold; that the premises at that time were worth more than $ 2,000, and that the proceedings of said Lucius S. Marvin, pretending to act as guardian for complainant, were originated and directed by the said Daniel Marvin for his own benefit, and for the purpose of enabling him, the said Daniel, to become the purchaser of said land at a price much less than its true value, and thus to defraud complainant. The bill also alleges that said Daniel, before he caused such appointment to be made, applied to said Proctor Tong, represented to him that said land was of little value and not worth redeeming from said mortgage, and by means of these and other false and fraudulent representations, procured from him a quit-claim deed of said premises, bearing date June 1, 1857. The complainant at this time was seven years of age.

We have no doubt that these allegations, if sustained by the evidence, make out a case of legal fraud. The false representations made to the father, by means of which a release of his supposed interest was obtained, had a direct tendency to induce the natural guardian of complainant to abandon all care for her interest in the land, and are equivalent, in the situation in which she then was, to false representations made directly to the person to be defrauded, when such person is capable of managing his own affairs. Equity must have regard to the effect of false and fraudulent statements, rather than to the person to whom they are made; and in most cases where a minor of this tender age is defrauded, it is only accomplished by operating upon friends and natural protectors.

But if the original transaction was, as is alleged in the bill, originated and carried through by Daniel Marvin for the purpose of obtaining complainant's land, at an inadequate price, and the guardian was a mere instrument in his hands for that purpose, not acting at all in the interest of complainant, but solely in that of Daniel Marvin, we think a fraud both upon complainant and upon the law has been committed, which requires the intervention of equity. It is not, however, necessary that the facts and circumstances which tend to establish the fraud should be detailed in the bill. Where the facts which constitute the fraud are set forth, with an averment of their injurious result, the case is sufficiently made by the pleadings, and a detail of the circumstances which tend to establish a dishonest intent in defendant's action, is more properly left to the evidence: Story Eq. Pl., § 252, and cases cited.

The principal question in the case, however, is whether Proctor Tong, the father of complainant, had an estate by the curtesy which was conveyed to Daniel Marvin by his deed of June 1 1857. This question depends mainly upon the proper construction of the statutes of 1844, 1846 and 1855, relative to the property and rights of married women, and the constitutional provision on the same...