ant's property, and cheating him out of any consideration. for it. The steady and consistently selfish management of Mrs. Nolan shows her hand in it from the beginning. She has the usufruct of all the property, and the fee to the best part of it, and is therefore in a position to be compelled to do such approximation to justice as is practicable. No injustice to her would be done by opening the whole series of dealings, especially as the settlement was intended to prevent him from pursuing his claims. for redress, and except as to the $400 was practically a fraud itself. It was immediately aimed at avoiding the specific performance of the agreement to convey to him the Guoin-street property, and Mrs Nolan was in this the chief agent or party interested, although the occasion. was used to get other releases. But as a result of these transactions the titles have all become beyond easy reach, except what Mrs. Nolan herself retains. It would do no injustice to put back the whole title. in complainant. But we are inclined to confine relief to a moderate provision. Complainant will be entitled to a reconveyance of the north half of lot 1, on the Chene farm, being the property he conveyed to Edward in the first instance, which, for reasons appearing in the record, we shall require to be joined in by all the defendants, and the decree in the meantime to stand in lieu of a conveyance. But in case defendants shall prefer to secure him by adequate security, to be approved by Judge Reilly, in the sum of $1,500, and to be executed within 30 days, with or without personal liability, such security may stand in place of the said reconveyance. It shall provide for the payment of $500 within a year from the date of this decree, and the balance in four equal yearly installments, without interest until after each shall become due. Complainant to recover costs of both courts. The other Justices concurred. 78 26 148 393 MARY FIELD AND ALICE WOODBRIDGE, EXECUTRICES, Trial-Directing verdict. Directing a verdict for the defendant in a replevin suit before either of the parties has rested, and while the case was in the hands of the defense, and the plaintiffs stated that they desired to offer further testimony, among which was the appraisal of the property, is error, calling for a reversal. Error to Wayne. (Gartner, J.) Argued November 6, 1889. Decided November 15, 1889. Replevin. Plaintiffs bring error. Reversed. The facts are stated in the opinion. Griffin, Warner, Hunt & Berry, for appellants. James H. Pound and Ed. E. Kane, for defendant. LONG. We shall not discuss this case, or pass upon any of the questions raised in the record, except the action of the trial court in disposing of it before the parties or either of them had rested. The action was replevin. After the plaintiffs had introduced their testimony, and while the case was yet in the hands of the defendant, the court directed the jury to render a verdict for the defendant for a return of the property. The facts in relation thereto, as stated in the record, are as follows: "Mr. Kane [attorney for defendant] stated that he wished to offer further testimony to show the fraudulent character of the transaction in the execution of the mortgages in suit, and to show that the corporation was insolvent at the time the mortgages were executed, and that the entire claim which resulted in the Free Press judgments was contracted between the date of the executions and the time they were placed on record. "After argument by Mr. Griffin on behalf of the plaintiffs the court stated that he was ready to dispose of the case. "Mr. Griffin. I wish to offer some further testimony. I offer in evidence the amount of the appraisal, with the writ of replevin. "Court. Gentlemen of the jury: It appears from the testimony in this cause that on the twenty-first day of April "Mr. Griffin. Excuse me, your honor, but I except to the action of the court in proceeding to dispose of the case before either the plaintiffs or defendant has rested." Notwithstanding this request, the court proceeded with his statement of the case to the jury, pointing out the reasons why the plaintiffs could not recover, and directed a verdict for the return of the property. This was error. It is claimed that, plaintiffs' counsel having stated just what testimony he proposed to offer, the court had a right to assume that he did not propose to offer any other. What took place there, as appears by the record, does not warrant this conclusion, and the plaintiffs had the right to put in evidence the appraisal under the writ of replevin. The court was clearly in error in thus summarily disposing of the case. The judgment must be set aside, and a new trial ordered. The costs will abide the event of the suit. The other Justices concurred. HIRAM HARRINGTON ET AL. V. JOSIAH UPTON ET AL. Executions-Bill in aid of-Validity of mortgage-Foreclosure— 1. Where judgment creditors file a bill in aid of execution, and join as defendants prior attaching creditors, who have levied upon the land to satisfy the judgment rendered in the attachment suit, and who also hold a mortgage upon the property having priority over complainants' lien, and who in their answer claim the benefit of a cross-bill, and pray for the foreclosure of their mortgage, a statutory foreclosure of which was enjoined in said suit at the instance of complainants, the court on dismissing the bill should decree such foreclosure. 2. A mortgage executed by a debtor to secure his creditor for his debt, and also to secure a debt due another creditor, which the mortgagee agrees to pay, is not in fraud of other creditors.1 Appeal from Gratiot. 1889. (Hart, J.) Argued October 17, Decided November 15, 1889. Bill in aid of executions. Complainants appeal from decree dismissing bill. in the opinion. Affirmed. The facts are stated C. J. Willett, J. K. Wright, and B. H. Scovill, for complainants. C. W. Giddings (Newell Leonard, of counsel), for defend ants. William A. Bahlke, special solicitor for defendant Kinter. [The briefs of counsel are mainly confined to a discussion of the testimony.-REPORTER.] 1 See Gore v. Ray, 73 Mich. 385 (head-note 3), for an important case touching this subject. LONG, J. The bill was filed in this cause in aid of executions, to set aside a certain deed and mortgage. It is claimed by the bill that complainants Harrington. and Saviers, on November 7, 1884, obtained judgment. before a justice of the peace against defendant Johnson. and one Thomas J. Lyon for $189.68, and $5.55 costs; that on the same day complainants Harrington and Saviers also had judgment before the same justice against defendant Johnson and said Lyon and one Aciel F. Wright for $183.76, and $6 costs of suit; that on the same day complainants Harrington and Saviers also had judgment before a justice of the peace against defendant Johnson and said Lyon for $202.97, and $5.55 costs; and also judgment against defendant Johnson, Wright, and Lyon for $153.21, and $6 costs; that on November 21, 1884, transcripts of these several judgments were filed in the Gratiot circuit court, and on the same day executions were issued thereon, and duly levied upon the north-west quarter of section 6, town 12 north, of range 3 west, Gratiot county, Michigan; notices of these levies being duly filed in the register's office on November 25, 1884. The bill also alleges that the complainant Case, on March 28, 1885, obtained judgment in the circuit court for Gratiot county against defendant Johnson and one Myron F. Frost for $249.77, and $23 costs of suit; and also another judgment in the same court against defendant Johnson and Thomas J. Lyon for $206.87, and $24.57 costs; that executions were issued on each of said judg ments on April 15, 1885, and levied on the same day, on the land herein before described, notices of such levies being duly filed. The bill further alleges that on May 1, 1885, and for more than five years prior thereto, defendant Johnson had title to said described land. |
Get this book in print