Killackey v. Killackey

Brooke, J. (after stating the facts). Defendant’s first contention is that plaintiff is not entitled to damages in this State for the withholding of dower in lands sold and conveyed by her husband prior to his death. The learned trial judge found, as a matter of fact, that the conveyance from James Killackey, Sr., to defendant was for a nominal consideration (the consideration mentioned in the deed was “ one dollar and other good and valuable consideration”). He found, as a matter of law, that, as between the widow (plaintiff) and this defendant, James Killackey, Sr., is to be regarded as having died seised of the property. We have no doubt that the conveyance by James Killackey, Sr., to his son, this defendant, was made with the intent of depriving plaintiff of her dower rights in the property. If this be true, the conveyance would amount to a fraud as to plaintiff, even though it was made for a valuable consideration and the grantee therein named went into possession of the premises. We think, under the circumstances of this case, the conclusion of law that, [315] as between the parties to this action, James Killackey, Sr., must be held to have died seised of the property, was correct. Brown v. Bronson, 35 Mich. 415; Rea v. Rea, 63 Mich. 257 (29 N. W. 703). 3 Comp. Laws, § 8941 et seq., provide for the recovery of mesne profits in cases where dower is withheld. The bringing of the action to recover dower was a sufficient demand upon defendant (Fuller v. Hubbard, 6 Cow. [N. Y.] 13 [16 Am. Dec. 423]), and the rents and profits were properly computed from that time. Defendant insists that, even conceding the liability of defendant, the judgment is excessive to the extent of $28.33. "With reference to this claim, we need only say that the record contains ample evidence to support the finding of the trial court. The judgment is affirmed. Moore, McAlvay, Blair, and Stone, JJ., concurred.