The learned judge below was led to take a different view and he submitted the case on the theory that the jury might be governed by Robinson's survey and might find that the plaintiff was estopped, and the result was a verdict for defendant. According to the case the plaintiff was entitled to recover whatever is held by defendants beyond the old ground line where the fence was originally set. The judgment must be reversed with costs and a new trial granted. The other Justices concurred. JOHN METTE V. THEODORE FELDMAN. Destruction of deed-Suit on bond given for payment of partnership debts. Destruction of an unrecorded deed does not revest title in the grantor, but only deprives the grantee of the means of proving his title. Certain lands belonging to an individual partner were included as assets in the partnership articles, and the firm gave a mortgage on them. The owner drew up a deed conveying an undivided half of them to his partner, but it was not recorded and he afterwards destroyed it and took up the mortgage with partnership notes. When he went out of the firm he took a bond from his partner binding the latter to pay all partnership debts, and gave him clear title to the lands, which the partner bought with the other assets. Held, that by destroying the former deed he would have been estopped from enforcing payment of the notes but for the subsequent conveyance of clear title, after which the notes constituted a liability enforceable by suit on the bond. ERROR to the Superior Court of Detroit. Submitted October 28. Decided November 10. DEBT on bond. Defendant brings error. Atkinson & Atkinson for plaintiff in error. the destruction of a deed estops one from Gugins v. Van Gorder 10 Mich. 523. Affirmed. Assenting to asserting it: Otto Kirchner for defendant in error. CAMPBELL, J. In this case Feldinan sued Mette on a bond conditioned to pay the debts of a firm of which they had been partners, but whose assets were sold to Mette. The sale included the premises occupied by the firm, the title of which had been entire in Feldman, and he gave a deed on the sale conveying a clear title. The articles of partnership set out the land as forming part of the assets. At that time there was a mortgage on the land, which, it was admitted by Mette on the trial, was a firm liability. After the firm was organized Feldman conveyed one undivided half of the land to Mette, but the deed remained in a desk unrecorded. Shortly before the dissolution the partners quarreled, and Feldman destroyed the unrecorded deed, and about that time gave two notes of the firm to take up the mortgage, and, as he admits, did so for the purpose of destroying the title. The defense rests on the ground that this estopped Feldman from claiming these notes to be a partnership obligation. The destruction of the deed did not revest the title in Feldman, but it deprived Mette of the means of proving his title. If things had remained in that shape, we think that Feldman would have been estopped from calling on Mette to pay the notes until he had made him good. But the subsequent conveyance of a clear title before the bond of indemnity was given removed this difficulty. Mette received the consideration, and the deed secured him in its enjoyment. The notes were given to cancel a lien which he had originally recognized, and which was a charge on the firm by mutual understanding. They were, therefore, very clearly partner. ship obligations for all purposes, and he was rightly held bound to pay them. The judgment must be affirmed with costs. The other Justices concurred. ISAIAH LETSON V. BENJAMIN S. REED ANd George Bona fide purchaser—When good faith is not presumable. Purchasers of land which has been fraudulently transferred to their grantor must establish the good faith of their purchase, and it cannot be presumed. Appeal from Cass. Submitted Oct. 28. Decided Nov. 10. BILL to set aside deed. Affirmed. Defendant Reed appeals. Edward Bacon for complainant. O. W. Coolidge and J. A. Kellogg for defendants. MARSTON, C. J. That Letson was most grossly defrauded by Abell in their land trade has not been and could not be controverted. It but remains to ascertain whether Reed is a bona fide purchaser from Abell, and we are of opinion that he has not shown himself to be such. This court has distinctly held that where a fraud has been committed, third parties in order to build up a right thereunder must establish the fact that they are bona fide purchasers and that this cannot be inferred from showing a purchase alone. Berry v. Whitney 40 Mich. 71. There is evidence tending to show that Reed was such a purchaser, but it would be far from satisfactory even if standing alone, and when considered in the light of the surrounding circumstances, its effect as such is entirely destroyed. The exchange of conveyances between Letson and Abell was made December 24, 1877. On January 2, 1878, Letson, suspecting that he had been defrauded, went to Pokagon, saw Abell and requested him to trade back farms which Abell agreed to do, and the next day at Niles was agreed upon as the time and place for such exchange. After this interview and on the same day, January 2d, Abell conveyed the Letson farm to defendant Reed subject to two mortgages thereon which Reed was to pay as part of the consideration. Abell was indebted to Reed in the sum of $374.84 and to Reed & Post $25-these sums were to be deducted and the balance was to be paid to Abell. One of the mortgages had been given by Letson and there was about $71 due thereon; The other had been given by Abell to one Newton, but not recorded, as his, Newton's, share for assisting Abell in making the trade with Letson. Reed before making the purchase did not go to see the land, but claims he had some knowledge of its location and value; he examined an abstract of title furnished him which did not show the Newton mortgage, or the amount due on the mortgage given by Letson; he took Abell's statement as to the amount due or to become due upon these mortgages, and assumed payment thereof; and upon the same day gave to Abell $240 for him to apply and pay upon the Newton mortgage, and Abell was given the deed of conveyance to Reed, to take on the same day and have recorded, and at the same time $25 was paid by Reed to Abell on the purchase. This is Reed's version of the transaction, and of what was done on January 2d, and it shows pretty clearly that Reed either had more confidence in the honesty and integrity of Abell than his previous acquaintance would have justified, or that he did not exercise that due care and prudence which men under ordinary circumstances would be expected to. While such a transaction is possible it is not according to the usual course of business and is highly improbable. There is evidence tending to show that on January 3d Reed had notice of the fraudulent character of the transaction between Letson and Abell, but whether on that day or later, we are of opinion that he has not shown that he in good faith paid Abell, or discharged his claim against him, or that he legally assumed the payment of any valid subsisting encumbrance on the land over and above the amount of the Letson mortgage-$71-and that still remains a lien upon the land. It follows that the decree of the court below must be affirmed with costs. FANNIE CHURCH V. ADELAIDE D. HOLCOMB, JOHN H. EARLE, Settlement of estate Probate license to mortgage-Amendment of bill in equity- Costs on remanding record for amendment of bill. The assent of parties does not determine a question of law, nor does their omission to contest a point urged against them. 88 154 1 45 29 116 213 45 29 A probate license to sell or mortgage real estate is not necessarily void for being granted after the expiration of the statutory time allowed 153 2138 for closing up the estate, if it has not been closed up in fact, and if the will contemplates that it shall remain in the hands of the executors for a longer period. Where a will provides that as the testator's children become of age the executors shall set off to them their shares of the estate, and it is obviously the intent that the executors shall receive and pay out moneys in managing the estate and supporting, maintaining and educating the children, any resulting indebtedness incurred by the estate to the executors in the strict discharge of what they believe to be their duty will not stand on the same footing with debts contracted by the deceased in his life time nor be subject to the statutory limitation requiring claims against the estate to be presented and allowed within four years and a half. Probate courts have general jurisdiction in testamentary and other probate matters, and their action therein is not void where no fatal defect appears on the face of the proceedings; it may be reversible on appeal, but must stand if an appeal is not taken. Where a presumptively legal claim, approved by the probate court, exists against an estate which still remains unsettled after the time limited for that purpose, and is still, for some purpose, in the hands of the probate court, it is within the jurisdiction of that court to license the giving of a mortgage on the estate to meet the expenses of administration; and if no appeal is taken and the probate order is confirmed the mortgage becomes a valid claim. 29 45 155 4553 20 45 4399 156 |
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