Wild v. Wild , 266 Mich. 570 ( 1934 )

Henry Wild was the owner of the property here in controversy when he died intestate in 1916. In November, 1916, all of his sons duly quitclaimed their interests in the real estate to their mother, Emma Wild. November 23, 1917, Emma Wild sold the land on land contract to Harry Wild, her son, who took possession of the same. January 5, 1922, the land contract having been partially paid up by Harry Wild, Emma Wild deeded the land to Harry Wild and took back from him and his wife a real estate mortgage of $2,500 and both the deed and the mortgage were duly recorded. October 5, 1929, Emma Wild died, leaving a last will and testament which has been admitted to probate. Well-grounded suspicions that the real estate in controversy was in oil-producing territory developed about that time. In the spring of 1930, Harry Wild leased the land for oil purposes and received a bonus of $3,500 for executing the lease. September 6, 1930, the bill of complaint was filed herein to specifically enforce a parol contract alleged to have been made at the time the quitclaim deed was executed that Emma Wild at her death would leave the property equally to her sons. From a decree for plaintiffs, defendants appeal. All the testimony in the case consists of proof of alleged statements and admissions of Emma Wild, deceased. The case was tried long after her death. Her mouth was closed.

Proof of admissions is concededly the most unreliable known to the law. It should be received with caution and subjected to careful scrutiny as no class of evidence is more subject to error or abuse. Witnesses having the best motives are generally unable to state the exact language of an admission and are liable by the omission or the change of words to convey a false impression of the language used. No other class of testimony affords such tendencies or possibilities for unscrupulous witnesses to torture the facts or commit open perjury as it is often impossible to contradict their testimony at all or at least by any other witness than the party himself. 2 Jones, Commentaries on Evidence, § 295.

"A fortiori where the admission is that of one deceased the caution should deepen into suspicion for reasons that are obvious and without corroboration is of little value." 2 Jones, Commentaries on Evidence, § 295.

Emma Wild sold the real estate to Harry Wild November 23, 1917, on land contract. He took possession of the same. Possession by a land contract purchaser is constructive notice of his rights. Corey v. Smalley, 106 Mich. 257 (58 Am. St. Rep. 474); Fraser v. Fleming,190 Mich. 238. Constructive notice by possession is equal to constructive notice by record. Fraser v.Fleming, supra; American Cedar Lumber Co. v. Gustin,236 Mich. 351. January 5, 1922, Emma Wild deeded the premises to Harry Wild and took back from him a real estate mortgage. Plaintiffs, by the express terms of the recording statutes, are charged with constructive notice, from the recording of the deed, of the rights of defendant Harry Wild (3 Comp. Laws 1929, § 13300).

By the land contract in question, the execution of the deed, and the acceptance of the real estate mortgage, Emma Wild had disabled herself from performing the contract mentioned and set forth in the bill of complaint. She had breached the contract made, if any such contract existed, and plaintiffs were guilty of laches in lying by and doing nothing until after death had closed her mouth against testifying in support of her and their deliberate acts. I am persuaded nothing ever would have been done by plaintiffs had it not been that this property came to be regarded as in productive oil territory and $3,500 was paid to Harry Wild as a bonus on an oil lease.

Emma Wild lived in Clare. She had no income outside the property which was left to her upon the death of her husband. The sons quitclaimed to her in November, 1916, their interests in the land. She lived approximately 13 years after such quitclaim deed was executed and delivered to her. Had she been without income her sons would have been legally liable under the statute for her care, support and maintenance, if able to contribute thereto (2 Comp. Laws 1929, § 8208 et seq.). They quitclaimed their interest in the real estate to her undoubtedly with the expectation she would dispose of such property as she desired to dispose of to obtain the necessary funds with which to live. The testimony in support of the alleged contract is not only extremely meager and contradictory but demonstrates no such agreement as that alleged in the bill of complaint was made. Frank Holcomb, who was once a near neighbor, says he talked with Mrs. Wild about the time her husband died.

"Q. Just what did she say?

"A. That she made an agreement with the boys if she — if they would do it. I don't know just how it was, but, anyway, then to give her a life lease of it and when she was through with it she would divide it equally, equal share alike when she was gone."

Eva Richmond lived in Clare in the same house with Emma Wild. She says:

"She said she and the boys got together and agreed to sign this property over to her, and then at her death it was to be turned back to the boys in equal shares. * * * She didn't designate any particular property that was to come to the boys share and share alike, but all the property except what sheused for her own use during her life time."

Arthur Richmond, husband of Eva Richmond, was present at this conversation and he testified:

"All she told me was that the time her husband died they didn't have no will and she, her and the boys got together andmade an agreement and they all signed it and she said she had the same as a life lease she figured, and when she was dead and gone everything would be divided equally among the boys."

Etta Snyder testified Mrs. Wild said:

"The boys came and signed off and it caused me no trouble, and I promised the boys when I died then I would turn back,divide up what was left when I died. That was all."

Mrs. Leichti, who had lived neighbor to Mrs. Wild, testified that Mrs. Wild never said anything about the boys having deeded the property but she did tell witness that she had just made the first will.

"Q. What was it she said about the will, what provisions she had made in the will with reference to the papers?

"A. Well, nothing, only she said at the time of her death she was going to divide the property equally amongst the boys. That is all."

This is the substance of all the testimony introduced by plaintiffs.

Analyzing this testimony it appears the witness Frank Holcomb did not know just how it was. It is apparent from his testimony he had no clear conception of any arrangement. He had been interviewed by Mr. Johnston, engaged in oil operation or promotion. This witness thought a life lease was involved. If a life lease was involved, title to the real estate was already in the boys subject to such life lease and it would be wholly unnecessary for her to divide the property share and share alike upon her death. It was theirs in equal shares anyway. Eva Richmond, who lived in the same house with Mrs. Wild, said all the property was to go back to the boys except what Mrs. Wild used for her own use during her lifetime. If there was such an understanding as is indicated by the testimony of Eva Richmond, Mrs. Wild took absolute title to the property. She had a deed, absolute in form, which quitclaimed all of the interests of all of the boys in the real estate and according to this witness she had a right to sell and dispose of this real estate and use the proceeds to be derived therefrom for her own use during her lifetime. This testimony can be consistent only with the fact the title transferred by the boys to Mrs. Wild was absolute and Mrs. Wild had a right to do with the property whatever she saw fit during her lifetime. Arthur Richmond, the husband of Eva Richmond, present at the same time, heard the same conversations, and directly disputes the testimony of Eva Richmond because he testifies what nobody else claims, that Mrs. Wild and the boys got together after the death of her husband and made an agreement and they all signed it. This was obviously untrue. Etta Snyder's testimony indicates Mrs. Wild made some statement indicating that at her death she was going to divide up what was left and to that extent corroborates the testimony of Eva Richmond who testifies Mrs. Wild said the boys were going to receive the property except what she used for her own use during her lifetime. The testimony of these witnesses indicates that by the quitclaim deed Mrs. Wild received an absolute title with full power and authority to dispose of the real estate quitclaimed for her own use and benefit. Mrs. Leichti knew nothing about the quitclaim deed and only testified that Mrs. Wild had made some statement to the effect that she was going to divide her property equally among her boys at the time of her death.

The quitclaim deed was absolute in form. It is presumed to contain the agreement made by the parties at the time. When the parties to a contract or agreement deliberately reduce it to writing, executed with the formalities of a deed, it is so conclusively presumed to embody the whole contract that parol evidence is inadmissible to contradict it or add to its terms. If such an agreement as is alleged was talked of when the quitclaim deed was made, and the testimony clearly shows there was no such talk, why was it not incorporated in writing? Though equity will specifically enforce a parol contract to leave property by will, such contracts must rest upon an adequate consideration and be accompanied by such part performance as to take them out of the statute of frauds (3 Comp. Laws 1929, §§ 13411, 13415). As said by this court:

"The contract or agreement sought to be enforced must be mutual and the tie reciprocal. It must be certain in all essential particulars. There must be acts of part performance unequivocally referring to and resulting from the agreement. The agreement set up in the bill of complaint must appear to be the one claimed to have been performed." Woods v. Johnson,ante, 172.

An additional parol agreement omitted from the executed writing, existing prior to or contemporaneous with that embodied in the writing, may not, under the guise of proving consideration, be added to the writing itself.

The quitclaim deed, the deliberate act of plaintiffs, based upon ample and adequate consideration, which stood unquestioned for 14 years ought to continue to stand. Plaintiffs who understood the property in question was deeded to Emma Wild to be used by Emma Wild to pay her expenses ought not to be permitted to repudiate that understanding and agreement.

Plaintiffs ought not to be permitted to question the acts of Emma Wild after having lain by so long a time without doing so. Titles by deed ought not to be modified or overthrown by parol evidence in the absence of fraud or mistake. The testimony of plaintiffs, when construed together, shows no such contract as that claimed and found was ever made. Title to real estate ought not to be disturbed by such uncertain, contradictory and wholly unsatisfactory evidence as that introduced here. From the record, from what the parties did, from the quitclaim in proper form to Mrs. Wild, from her sale of the property under the land contract to Harry Wild, from the payments made by him through the bank at Clare, from the fact the land was sold by Emma Wild to Harry Wild under land contract as early as November 23, 1917, 13 years before suit was commenced, and the property was deeded by Emma Wild to Harry Wild, and a real estate mortgage taken back January 5, 1922, eight years before the commencement of suit, that there never would have been any litigation had it not been for the voluntary interference of Mr. Johnston, after Harry Wild had obtained the $3,500 bonus for executing an oil lease, seems clear.

The decree of the trial court is reversed and the bill dismissed, with costs.

NORTH, FEAD, WIEST, and BUSHNELL, JJ., concurred with POTTER, J.