Mosher v. Mosher , 108 Mich. 612 ( 1896 )

Long, C. J.

The bill in this cause was filed for the purpose of establishing a lost deed. The cause was heard in the court below in 1894, and a decree entered there in favor of complainant, establishing said deed. From this decree defendant appealed to this court, where the cause was heard at the January term, 1895, and an opinion was filed therein on April 2, 1895, and is reported in 104 Mich. 551. In that opinion it was said:

‘ ‘ While there is sufficient testimony in the case to justify a finding that a deed was executed and deposited with Weir, yet we are convinced that the allegation in the bill that it was upon a consideration actually paid by Alva Mosher is not sustained, and that such deed was subject to recall by Oliver E. Mosher; and the fair inference from the testimony is that it was recalled after his marriage.”

The facts are so fully set out in the opinion that further reference to them is unnecessary. After this opinion was filed, a rehearing was asked by counsel for complainant. Incidental to that motion, certain affidavits were filed, and leave was asked to introduce further testimony upon the main question in the case; that is, the question upon which the case was here reversed. The motion for rehearing was thereafter denied, as well as the motion for leave to introduce further testimony. Application is now made, to this court for leave to file a bill of review.

The application contains the affidavits upon which the motion for leave to introduce further testimony was based, as well as several other affidavits, which are for the first time presented. If the affidavits now presented, taken with those which were produced on the former motion, are true, a very strong case is made showing that the deed was given for a valuable consideration, as stated in the bill of complaint; and the decree of the court below should have been affirmed, as Oliver E. Mosher would not have had the right to recall the deed and destroy it. Upon the showing now made, it is clear that complainant should have the right to be heard upon the testimony discovered since the cause was heard in the court below. The showing is clear that the complainant was not in fault in not producing this testimony upon the former hearing, and equity requires that the case be opened to permit this testimony to be introduced.

The prayer of the petition must be granted, and leave given to file a bill of review, on condition that complainant pay the costs of this court and a fee of $15 on this motion.

The other Justices concurred.