Walsh v. Varney

• Citation: 38 Mich. 73
• Court: Michigan Supreme Court
• Decision Date: 09 January 1878
• Parties: Robert Walsh et al. v. William H. Varney et al

38 Mich. 73

Robert Walsh et al. v. William H. Varney et al

Supreme Court of Michigan

January 9, 1878

Submitted October 19, 1877

Appeal from St. Clair.

Bill of revivor. Complainants appeal. The facts are in the opinion.

Decree dismissing the bill affirmed with costs.

Brown & Farrand for complainants.

Chadwick & Voorheis for defendants.

Campbell C. J. Graves and Cooley, JJ., concurred. Marston, J., did not sit in this case.

OPINION

Campbell, C. J.

This is a bill filed by several purchasers of separate lots by direct or mesne conveyances from several distinct grantors who got their respective rights by allotments under partition proceedings. They seek to obtain a revival of those proceedings for the purpose of having a decree barring of their rights several persons who were not made parties to that suit, and to prevent them from asserting their legal rights, as they are doing in some instances, by ejectment.

The bill is peculiar and somewhat involved, but its important features may be easily described. It was dismissed by the Circuit Court on demurrer.

In 1850 a decree made by the circuit court for the county of St Clair was affirmed by this court, which was in substance that partition should be made between John Thorn as half owner, and the heirs of Thomas S. Knapp, as owners of the other half of certain property in Port Huron divided into city lots. The decree directed an accounting by Thorn for the proceeds of other lots sold in which Knapp was equally interested, allowing Thorn compensation for his services in managing the property, and directing him to pay the heirs or the estate of Knapp to pay him any balance found against either on the accounting. It does not clearly appear, and is not now important, whether or not such balance was made chargeable on the property. (Inferentially it would seem not to have been made so chargeable, as the balance, if coming from Knapp's estate, was a personal claim, and the same result would apply against Thorn or his estate.)

Thorn died in May, 1851, leaving a widow, and none but collateral heirs, the descendants of brothers and sisters. The widow and Samuel W. Hamilton were appointed administrators. Hamilton had several years before held title to certain lots north and separate from the lands embraced under the terms of the decree against Thorn, and which would have been embraced, not in the partition, which related to lands then owned, but in the accounting for lands previously sold, the title to which was recognized and not questioned. These lands, being all lots lying north of Broad street, which had been once held by Thorn subject to Knapp's equity in the moiety, were at the time of the original chancery proceedings owned by Mrs. Thorn in her own right, and not legally involved in the proceedings. She afterwards conveyed them to Hamilton, in 1851, after Thorn's death.

In November, 1852, the suit was revived, and Mrs. Thorn and Hamilton were brought in as administrators, and a large number of Thorn's heirs were also made defendants. Some now appear to have been left out who are made defendants, or whose grantees are made defendants, to this present bill. The character and extent of their interests are not defined distinctly.

In the same month an order of reference was made, and on the 20th of May, 1853, an account was stated, by which the Knapp heirs were credited with $ 2,500 as due them from Thorn's estate, over and above his counter claims. This settlement bound the estate as represented by the...