Longe v. Kinney

Brooke, J. (after stating the facts). The first question requiring consideration is whether the testimony of Mr. Hawley is competent. 3 Comp. Laws, § 10212, was amended by Act No. 30 of the Public Acts of 1903 to read in part as follows: “No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died, shall be a competent witness in any suit involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract against the legal representatives or heirs of such decedent, unless he shall be called by such heirs or legal representatives. * * * Provided, that whenever the words ‘the opposite party’.occur in this section, it shall be deemed to include the assignors or assignees of the claim or any part thereof in controversy.” This statute has been construed in the following cases: Gustafson v. Eger, 132 Mich. 387 (93 N. W. 893); Detroit United Railway v. Smith, 144 Mich. 235 (107 [318] N. W. 922); Locklund v. Burman’s Estate, 146 Mich. 233 (109 N. W. 255); In re Reidy’s Estate, 164 Mich. 167 (129 N. W. 196); and in Bigelow v. Sheehan, 166 Mich. 89 (131 N. W. 78). In making the conveyance in question, it is clear that Mr. Hawley was the assignor of Mary O’Day. From his own testimony it likewise appears that in said transaction, so far as he represented anybody, he acted as agent for Mary O’Day, and was by her compensated for his services as such. A further reason is urged against the competency of Mr. Hawley’s testimony from the fact that it tended to contradict the plain terms of a written instrument. The deed is absolute upon its face, and is made in pursuance of the powers granted by the will of Patrick O’Day. Those powers included the right to make an absolute sale of the land in question, but granted no power to create a new trustee. 3 Compiled Laws, § 8849, provides: “When the trust shall be expressed in the instrument creating the estate, every sale, conveyance, or other act of the trustees, in contravention of the trust, shall be absolutely void.” The rule is laid down in 13 Enc. of Ev. p. 121, as follows : “ It is generally held that in the absence of fraud, mistake or accident, that the grantor in an absolute conveyance, reciting a valuable consideration, cannot show by parol evidence that the grantee was to hold the lands conveyed in trust for his benefit.” Cases are cited from many jurisdictions in support of the text. If is said in Willis v. Robertson, 121 Iowa, 380 (96 N. W. 900): “ The promise of a grantee in a deed, absolute on its face, to hold the property for the benefit of the grantor’s heirs, cannot be shown by parol; nor will his subsequent refusal to fulfill the promise constitute a fraud converting the deed into a trust, where the execution and delivery of the same was not induced by the wrongful act or promise of the grantee.” [319] By the terms of the will of Patrick O’Day, Mr. Hawley was charged with the duty of paying the debts, funeral expenses, and expenses of administration of the estate of said O’Day, and with the payment of the balance to Nellie O’Day. His testimony is that Mary O’Day— “Was to assume the responsibility that I had assumed in accepting this office of trust as executor; that was understood and agreed upon and I made the deed.” If Mary O’Day took the deed in question charged with any such duty to the estate of Patrick O’Day, it is clear that the existence of such an obligation must be found outside of the instrument itself. The general doctrine is well stated in 9 Enc. of Ev'¡ p. 331, as follows: “It is a general rule that evidence of a prior or contemporaneous agreement which is inconsistent with the terms of a written instrument, complete upon its face, and unambiguous, is, in the absence of fraud or mistake, inadmissible to contradict, vary, or in any way alter the terms of the written instrument, as all such agreements are presumed to be merged in the writing, or, if not embraced therein, to have been rejected by the parties” — citing cases. A further and controlling argument against the position of complainant may be found in 3 Comp. Laws, § 9509, which reads: “No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed of conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same,- or by some person thereunto by him lawfully authorized by writing.” In Hayes v. Livingston, 34 Mich. 396 (22 Am. Rep. 533), it is said: “ The law does not permit title to lands to rest in parol, nor does it allow anything which is evidenced by the [320] deeds to be changed on parol testimony of promises, agreements or understandings.” The deed in question created no trust relations between complainant and Mary O’Day, and, if the testimony of Mr. Hawley could be considered, it would show only an agreement between them with reference to complainant’s interest in real estate, said agreement not being evidenced by any writing as required by the statute. In Mitchell v. Bilderback, 159 Mich. 483 (124 N. W. 557), this court said: “ The alleged agreement to sell this land and divide the proceeds was made in 1898, and was manifestly void under the statute of frauds. That was seven years or thereabouts before the sale of the land by Dill. Therefore there was not at that time a fund in existence in which a trust could be created by parol ” — citing Rapley v. McKinney's Estate, 143 Mich. 508 (107 N. W. 101), and Collar v. Collar, 86 Mich. 513 (49 N. W. 551, 13 L. R. A. 621). So, in the case at bar, the alleged agreement was made some years before the alleged trust fund was created by the sale of the land in question. The record contains no evidence as to what Mary O’Day paid in settlement of the debts and funeral expenses of her husband, Patrick O’Day; nor does it contain any competent evidence that she did not in her lifetime pay to Nellie O’Day the difference between the amount of said debts and funeral expenses, and the amount received by her for the 40-acre farm in question. The record shows that during the latter years of the life of Mary O’Day, the relations between herself and the complainant were strained in character. It is, we think, very significant that the complainant, who at the time of the transaction in question was more than 21 years of age, should have waited 21 years before attempting to enforce her alleged rights. The unexplained delay of a creditor to enforce his claim for so long a period gives rise to a presumption of payment. See 9 Enc. of Ev. p. 709; 18 Am. [321] & Eng. Enc. Law (1st Ed.), p. 207; 22 Id. (2d Ed.), p. 591, and cases cited. We are of opinion that the testimony of Mr. Hawley was clearly incompetent under the statute, and, even assuming that it as well as that of Mrs. Tolies is admissible, it cannot be permitted to change the terms of the deed in question, which is plain, unambiguous, and absolute upon its face. The bill of complaint is dismissed, and defendants will recover costs of both courts. Moore, C. J., and Steers, McAlvay, Stone, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.