Nickerson v. Nickerson

Brooke, J.

(after stating the facts). Appellant’s claims are set out as follows:

“1. That the contract alleged was indefinite and uncertain as to the time of the performance and the amount of improvements.

“2. That the proofs failed utterly to show a contract made and accepted, and that plaintiff’s possession and improvements were as consistent with his expectancy as an heir of his father as that he relied on any contract.

“3. That the entire testimony relative to the alleged contract consisted of casual declarations made by Levi Nickerson to strangers many years ago, and which are more consistent with the testamentary intent expressed by him than with the fact that he had made a contract with his son John Nickerson.

“4. That the entire proofs showed that Levi Nickerson intended to leave a farm at his death to each of his sons, and if under any circumstance the court finds that this amounted to a contract, before plaintiffs can be granted relief, they must quitclaim their title in the Ohio lands to the defendant.

“5. The plaintiffs were guilty of laches, _ having waited years after the death of Levi Nickerson and until Mack Nickerson died, and 44 years after making the alleged contract, and.having waited until the death of Mack Nickerson and Levi Nickerson, defendant’s evidence was destroyed.

“6. Plaintiffs are estopped by their conduct to now claim a right to specific performance.

“7. The court refused to permit witness Eva Nickerson, defendant, to testify to admissions of John Nickerson, the plaintiff, made in the presence of Mack Nickerson, defendant’s grantor.”

A careful examination of this rather voluminous record convinces us that Levi Nickerson, deceased father, bought the farm in. question with the intention of deeding it to plaintiff John at some indefinite time in the then future, upon condition that John should enter into possession thereof, clear it, work' it, and make* a home upon it. It is in evidence that about the year 1898, Levi Nickerson told one of the witnesses that he had executed a deed of the farm to John and would deliver it to him so soon as he had secured a divorce from his first wife, with whom he had had difficulty and from whom it appears he was finally divorced.

There appears to have been a very full performance on behalf of plaintiff John of his part of the contract. He left the home of his boyhood, in Ohio, came to Michigan and settled upon a piece of very heavily timbered land in a section where there were no roads, the farm being reached by a trail through the forest. With infinite labor, through a long period of more than 40 years, he cleared and improved the farm, erected buildings and fences thereon, and created a very large portion of its present value.

In the meantime, his father, Levi Nickerson, visited him occasionally and saw all that he did and himself never exercised nor attempted to exercise any acts of dominion over the farm. At intervals during the 40 years, John considered the advisability of selling the farm. Correspondence was had between him and his father, Levi, in the course of which language was used by Levi which very clearly indicates that he considered the farm in question was the property of John. In one letter, bearing date April 11, 1898, he said:

“Now you wanted to know what I was going to give you if you sold. I do not want anything from the place but if you sell you must have somewhere to put the money so you won’t lose it.”

Again, in a letter apparently written about 1915, he said:

“Now take good advice and stop right there and stay where you are. You have got plenty of land where you are. You have put 40 years to fix up and now you want to take the good of it. If you are going north, I want to stay there when you aré gone. Give up that north and come after me soon. John, give, north up; be contented where you are, and serve God.”

Referring to the contention that the contract sued upon is too indefinite and uncertain as to time of performance, it must be said that it is quite as definite as many of those as to which equitable relief has been granted by this court. Taft v. Taft, 73 Mich. 502; Brown v. Brown, 163 Mich. 337; Hogan v. Hogan, 187 Mich. 278; Friend v. Smith, 191 Mich. 99; Prendergast v. Prendergast, 206 Mich. 525.

It is asserted that the contract alleged was not proven and that the declarations of Levi Nickerson indicated testamentary intent only. We are of the opinion that the contrary appears from this record. A fair consideration of the testimony supports the conclusion that Levi agreed to deed the lands in quesr tion to John during his lifetime. But if it is assumed that the contract was that he should leave it to Mm in his will, nevertheless equity would afford relief in case of the breach. Howe v. Benedict, 176 Mich. 522.

It is claimed that the plaintiffs were guilty of laches in taking no steps for upwards of 40 years to compel the father, Levi, to perform his part of the contract. It should be remembered that the parties then in interest were father and son, that the utmost confidence and good feeling apparently existed between them. Levi never interfered with the possession of Ms son nor- interposed the slightest objections (beyond friendly advice) when John desired to sell. Besides, it is well settled that delay alone in enforcing a right does not necessarily indicate laches. Laches may only be predicated where delay is accompanied by prejudice to the rights of others who claim adversely. Humiston, Keeling & Co. v. Yore, 181 Mich. 629.

The testimony of Eva Nickerson, the defendant, was excluded. She offered to testify that after the death of Levi plaintiff John and her husband, Mack, negotiated for a settlement of their interests in Levi’s estate on the basis of Mack quitclaiming to John his interest in the Michigan lands and John quitclaiming his interest in the Ohio lands to Mack and the,payment of $2,000 to Mack. It would seem that this testimony was properly excluded as evidencing an abortive attempt to compromise a threatened litigation. But, assuming such testimony had been received, it could have no legal bearing on the exact point at issue.

It is strongly urged by counsel for appellant that plaintiffs, being in a court of equity, should be compelled to do equity — meaning that they should be compelled to quitclaim to defendant their interest in the Ohio lands. Upon this question, we are satisfied with the conclusion of the learned circuit judge:

“As to the claim by defendant that this court should determine that Mack was entitled to the Ohio land if John is to the Michigan land: I am not satisfied, simply because of any talk between the two sons after the death of Levi, that this court can settle his rights. It seems that his estate is being administered in Ohio, and if he has a claim against his father entitling his estate to hold the 68% acres his estate will have to settle that right in the courts of Ohio. The issue at this<,time is as to John’s right by virtue of the agreement with his father.”

The decree is affirmed.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.