Wright v. Hubbard

Grant, J. {after stating the facts). 1. The proceedings of the probate court are immaterial to the controversy between the parties. Defendant Hubbard was not a party to the proceedings before the commissioners, and their finding does not bind her as the owner of the mortgages. The mortgages had been assigned to her. No claim is or can be made that she did not then become the owner of them, and entitled to all that remained due after deducting all legitimate payments. There was nothing in the proceedings before these commissioners, had she been notified thereof, that the claims were designed to offset her mortgages. It was unnecessary for Mr. Wright to have any claim allowed before the probate court under his agreement with Mrs. Poland that the price of her board should be applied pro tanto. In fact the estate of Mrs. Poland owed him nothing for the board, because he and Mrs. Poland had agreed to apply it on the mortgages. If there was a dispute as to how much the payments were, that question could only be settled in the foreclosure proceedings, or upon a bill filed by the mortgagor to annul the mortgages on the ground of payment. The questions, therefore, that are raised as to the validity of the proceedings before the commissioners, need not be discussed. 2. That there was an agreement to apply the board of Mrs. Poland upon these mortgages is conceded. It is [243] claimed by defendant that the first agreement for $10 per month covered all the time. During 1891 that was the customary price for board. It does not appear whether there was any change in the price afterwards. Nothing was said about the price on the other occasions, nor was any settlement afterwards made. Mr. Wright now claims $20 a month from May 20, 1894, to December 20, 1895, and in 1896. For board alone upon a farm, especially when Mrs. Poland furnished her own rooms, this would be extravagant. Considering that she was ill part of the time, and that her meals were served in her room, the price may thereby be properly enhanced, and we are inclined to let the amount stand at $20 per month. The expenses of the funeral were paid by Mr. Wright, and Mrs. Hubbard conceded that they might be allowed against the mortgages. 3. The record is barren of any language implying an agreement to pay Mrs. Wright for nursing, and apply the same upon the mortgages. Whether her claim was a legitimate one against Mrs. Poland’s estate is a question upon which we pass no opinion. Except in 1896, Mrs. Wright attended to all her household and family duties. In 1896 they had a hired girl. Her charge for nursing and washing was, first, $2 per day, then $3, and in 1896 $4. These charges exceed those of trained nurses, and the action of the commissioners in allowing them seems a little strange. But, however this may be, this was a debt from Mrs. Poland to Mrs. Wright, and not to-Mr. Wright, who alone was under obligation to pay the notes. Mr. Wright is now seeking to offset a debt due to his wife against mortgages and notes executed by him. We disposed of this question in Wolff v. Jasspon, ante, 11 (85 N. W. 260). There is evidence that Mrs. Poland stated that Mrs. Wright should be well paid for nursing and caring for her. But no inference can be drawn from this that she was to be paid by applying the value of her services upon her husband’s debt. It is very apparent that the scheme [244] to pay these mortgages in this manner was an afterthought on the part of Mr. Wright. After the death of Mrs. Poland, he offered to deed the land to Mrs. Hubbard if she would pay the funeral expenses and give him what it would cost to foreclose, $200. Such a proposition cannot be rejected from the consideration of the court on the ground that it was an offer to compromise. It was an offer which very clearly shows that Mr. Wright still considered himself indebted upon the mortgages to nearly the value of the premises, and that he desired to save something if he could. The decree will be reversed, and a decree entered in this court in accordance with this opinion for the balance due Mrs. Hubbard, with the usual decree of sale, with costs of this court. Montgomery, C. J., Hooker and Moore, JJ., concurred. Long, J., did not sit.