Wilson v. Wilson

• Decision Date: 12 November 1858
• Citation: 6 Mich. 9
• Court: Michigan Supreme Court
• Parties: Jane Wilson and another v. Eunice T. Wilson

6 Mich. 9

Jane Wilson and another v. Eunice T. Wilson

Supreme Court of Michigan

November 12, 1858

Heard October 12, 1858; October 13, 1858

Appeal from Wayne Circuit in chancery, where decree was rendered in accordance with the prayer of the bill.

The case, so far as necessary to illustrate the decision of the court, is set forth in the opinion.

Decree of the court reversed, and a decree entered dismissing the bill of complaint, with costs, without prejudice.

C. I Walker, for complainants:

The testimony clearly shows that, by the contract of February 21st, 1853, the sixteen acres were to be conveyed to the complainant Jane. It also shows that she took possession of the premises, by her agents and tenants, and received the rents therefor.

The contract being proved as alleged in the bill, it is a clear case for a specific performance, under the most stringent doctrine upon that subject. Here is a complete performance on the part of Charles M. Wilson, by the conveyance of February 21st, 1853, and the reception of the mortgage from Heath by Henry J. Wilson. Jane also took possession under the contract. All was completed, except the conveyance of the sixteen acres to Jane: 2 Story Eq. Juris., 759; McMurtrie v Bennette, Harr. Ch., 124; Ex parte Storer, Davies, 294; Gilmore v. Johnston, 14 Ga. 683; Wetmore v White, 2 Cai. Cas., 87.

J. M. Howard, for defendant:

Henry J. Wilson, according to the bill, was to hold, and, on the delivery to him of the deed, did hold, the premises, not for his own use and benefit, but for the use and benefit of Jane. The title was, therefore, held by him in trust, and he was a trustee. Such a trust is void by our statute of frauds, unless proved by some deed or conveyance subscribed by the party declaring the same, or by some person thereunto by him lawfully authorized by writing: Comp. L., p. 912.

The present is not the case of a resulting trust, where the money is paid by one person, and the title taken in the name of another: White v. Carpenter, 2 Paige 238. But this kind of resulting or implied trusts is, by our statute of uses and trusts, abolished, and the party paying the purchase money has no title or claim whatever: Brewster v. Power, 10 Paige 569; Garfield v. Hatmaker, 15 N. N., 475. And where the trust is simple, and for the use and benefit of another, the beneficiary takes the whole title, legal and equitable: Selden v. Vermilyea, 3 Comst. 535. Indeed, this case does not fall within any of the classes of resulting trusts defined by Lord Hardwicke, in Lloyd v. Spillett, 2 Atk. 148, and by Chancellor Kent, in 4 Kent 305, 306. And such a trust is forbidden by our statute of uses and trusts, sections 1 and 5.

But reliance is placed on the agreement of February 21st, as a contract to convey to Jane. Such a contract is a mere nullity: 11 Paige 405, 410; 26 Wend. 34; 6 Metc. 319. But the bill relies upon part performance to take the case out of the statute. The part performance alleged is the taking of possession by Jane, and the expenditure of moneys in repairing the fences. To take the case out of the statute on this ground, it is indispensable that the acts done should be clear and definite, and referable exclusively to the contract, and the contract should also be established, by competent proof, to be clear, definite, and unequivocal in its terms: 2 Story Eq. Juris., 764; Weed v. Terry, 2 Doug. Mich., 352. The alleged possession should be notorious: 7 Barr 157; 4 Blackf. 94; 19 Pa. St., 461; 6 Watts 464; 7 Barr 91. And under and in pursuance of the contract of sale: 3 S. & R., 543; 3 Ves. 378; 18 Ves. 328; 14 Pa. St., 260; 22 Ibid. 225. And with the knowledge and consent of the vendor: 1 Bro. C. C., 409; 18 Ves. 328; 9 Watts 106.

The original arrangement, as proved, was to convey the premises in controversy to Charles Wilson, instead of Jane. If so, it divests the alleged possession and improvements of all the characteristics of part performance in favor of Jane. But this alleged possession is not sufficiently proved. And as the alleged rights of Jane arose, not out of the original contract, but, if at all, out of a subsequent verbal one, without consideration, it can not be enforced in her favor: 6 Paige 288, 292.

Walker, in reply:

This was not a trust within the authorities cited, or within the statute. No agreement is alleged or proven that Henry Wilson was to hold this land in trust for any one; but he was to convey, immediately, on demand.

OPINION

Campbell J.:

The complainants file their bill for the conveyance of two lots of land in Wayne county, alleged to be held by the defendant as devisee of Henry J. Wilson, deceased. The claim for relief is base upon an agreement which is averred to have been made by Henry J. Wilson during his life time, under the following circumstances:

In February, 1853, Charles M. Wilson was the owner of a tract of land lying partly south and partly north of the Grand River road, the larger portion lying south of the road. The north tract was divided into three lots, the middle one being a tavern stand then occupied by George Heath. Henry J. Wilson held a purchase money mortgage on the whole property, for four thousand five hundred dollars. On the 21st day of February, 1853, Charles M. Wilson, and Jane Wilson, his wife, conveyed the whole premises to Henry J. Wilson, by a warranty deed. On the 27th day of the same month, Henry J. Wilson conveyed the tavern stand, consisting of about eight acres, to George Heath, taking back a mortgage for four thousand five hundred dollars. In July, 1856, Henry died, seized of the remaining premises, and the defendant was made his universal legatee, and also took out letters of administration with the will annexed. The controversy in this case arises upon the lots north of the Grand River road, upon each side of the Heath tract.

The bill sets up that Charles M. Wilson, being about to go to California, to be absent for some time, and being desirous of disposing of his remaining interest in the property, which was subject to the mortgage to Henry, and, at the same time, of making some provision for his wife Jane, entered into an agreement with Henry, on the 21st day of February, 1853, to sell and convey to him the whole property, including the Heath tract (which the bill states Charles was bound to convey to Heath), and that, in consideration thereof, Henry agreed to convey to Heath this tract, and also agreed, immediately, and whenever demanded, to execute to Jane Wilson, wife of Charles, a warranty deed of the two adjacent lots. That, in pursuance of this agreement, Charles and his wife made the conveyance of February 21st to Henry, and Henry, also in pursuance of the agreement, conveyed the tavern stand to Heath, but neglected during his life to convey the other lots to Jane. That Charles immediately left for California, and was absent until June, 1856. The bill also contains statements of possession by Jane and her lessees.

The bill does not state whether the agreement was verbal or written. The answer admits nothing, and puts the whole case at issue.

The defense made upon the hearing was twofold: First, That the complainants do not prove their case in substance, as alleged; and, Second, That the case which they seek to make is within the prohibitions of the statute of frauds and the statute of uses and trusts.

We propose to examine first into the case made by the proofs. As the party in default, Henry J. Wilson, died before the bill was filed, and as Mr. Selkrig, a principal witness, died before proofs were taken, justice to all parties requires that the whole transaction...