Fowle v. Barnes

Long, J. The bill filed in this cause sets forth a contract between Smith Barnes and Wolcott F. Griffin, by the terms of which said Griffin was to plat and sell a certain tract of land, known and platted as the “Second Fern-wood Addition to the City of Traverse City;” all moneys, including the purchase money and incidental expenses, to be furnished by said Barnes, he to be reimbursed by the moneys received from the first sales of lots, after which the parties were to divide the proceeds, share and share alike. It further alleges that said Griffin platted said addition, and sold a number of lots nearly sufficient to [10] reimburse said Barnes for all moneys expended, and that said Griffin was afterwards debarred from a participation in the management of said business, which was thereafter controlled by said Barnes while living, and by his estate since his death. This bill was filed for the purpose of compelling the executors of the estate of said Barnes to come to an accounting for the proceeds derived from the sale of said real estate,- — -which, it is claimed, are held in trust for the complainant, — and to secure a sale by order of the court of the portions of said property remaining unsold, and to make a division of the proceeds. A general demurrer to the bill was filed by defendants Barnes and Hatch, and was overruled by the court below. From this order, defendants Barnes and Hatch appeal. It appears from the bill that, after the execution of this contract, and its partial performance by Griffin, Smith Barnes himself took, or pretended to take, the management of this property out of the hands of said Griffin, and himself sold several parcels or lots> taking the moneys therefor, but that no accounting has been had between the parties. It also appears that some 19 lots remain unsold. The contention of the defendants is that these matters can properly be adjusted in the probate court, and that complainant’s claim should have been presented there, and that, therefore, it is not a case calling for the interposition of a court of equity. It seems, however, that the trust is a continuing one, and we think the rights of the parties cannot be* properly adjusted except in a court of equity. A quantity of property remains yet unsold, according to the statements contained in the bill; and certainly the probate court, with its limited jurisdiction, would not be the proper forum to adjust the equities between the parties as to that part of the trust. We think the case is governed by Nester v. Ross Estate, 98 Mich. 200. The order of the court below must be affirmed, with [11] costs. The defendants will have 20 days to answer the bill after notice of the entry of decree here. The other Justices concurred.