Ruggles v. Merritt

Ostrander, C. J. (after stating the facts). From the facts stated, and admitted by the demurrers, it follows that the original agreement was fully performed by the Ruggleses during the life of Daniel W. Bradley; it was [460] partly performed by Mr. Bradley, who furnished the money. What remained to be done was to sell and convey the land and upon accounting pay over to the Ruggleses a portion of the profits, if there were profits. A sale and conveyance by Bradley involved no exercise of a conferred, or a reserved, power, but the act of an owner, unrestrained, at least after five years, by any duty or obligation growing out of the contract relation except the duty of fair dealing. In no event, and according to no legal theory, had the Ruggleses any interest in the land, nor was the land charged with any trust. The interest of the Ruggleses was an interest in proceeds of sales to be made. Petrie v. Torrent, 88 Mich. 43 (49 N. W. 1076); Carr v. Leavitt, 54 Mich. 540 (20 N. W. 576 ). This relation of the parties has not changed. We shall assume that it was by consent of complainant that William H. Bradley was introduced to the contract relation, and that it was mutually understood that he should be substituted for Daniel W. Bradley with respect to the contract duty to divide the profits derived from sales of the land. It is said that upon the death of William H. Bradley the legal title to the lands descended to his heirs, subject to a trust in complainant’s favor, and Fowle v. Barnes, 99 Mich. 8 (58 N. W. 63), is relied upon to support this contention. In that case the bill was filed to compel executors to come to an accounting for proceeds of sales derived by the testator and his executors from sales of real estate, to secure a sale of real estate unsold, and a division of proceeds. There was involved nothing more than the enforcement of a contract relation, personal in nature, but relating to the proceeds of sales of certain lands. In the case at bar, it would have been eminently proper for the complainant to have taken similar action upon the death of William H. Bradley. If he had in his lifetime sold any of the lands, the profits remaining undivided at his death, complainant’s demand for such profits would have been one against his estate. And as to lands unsold we think it was equally the duty [461] of complainant, instead of permitting a settlement of the estate, and a sale of the lands for the benefit of the estate, or the beneficiaries thereof, to have filed his bill against the representatives of Mr. Bradley to secure a sale of the lands and a division of proceeds in accordance with his alleged contract rights; to have compelled execution in full of a contract partly executory, because the estate of Mr. Bradley, as to its real extent and value, was affected by the contract with the complainant. Assuming that the duty to perform the contract devolved upon the legal representatives of Mr. Bradley and upon his heirs and devisees, it was still a duty to sell the land, acting in good faith, and divide the proceeds with complainant. Complainant’s relation to the land did not change. And if the representatives, or the heirs, sold and conveyed the land, we can conceive of no reasonable theory according to which the contract duty could be devolved upon successive grantees until such time as the complainant chose to ask for an accounting. For the purposes of this case it is immaterial whether the conveyances were warranty or quitclaim deeds. It is material that the beneficiaries of the estate of Bradley sold the lands and were immediately liable to account to the complainant. These grantors are not made parties to the bill. It is not charged that the sale made by them was fraudulent. If fraudulent, it is not plain how any but the parties to the fraud could be held re-* sponsible. We are not advised by the bill of the manner of administering the estate of William H. Bradley, if it was administered, and we do not decide that the heirs of Mr. Bradley, or his devisees, owed to complainant a duty to account for any portion of the proceeds of the land in question. What we do decide is that, assuming that the contract obligation became their obligation, the duty to account became fixed when they sold and conveyed the land, and successive grantees, although having knowledge of the duty, are not required to ascertain at their peril whether they have or have not accounted. We sustain the demurrer of defendants Merritt upon [462] the fourth and fifth grounds assigned therein and the demurrer of defendant Lumber Company upon each of the grounds therein assigned. The order and decree of the court below is reversed, with costs of both courts. Complainant may have 30 days after entry of decree in this court to amend the bill. Bird, Hooker, Blair, and Stone, JJ., concurred.