Farr v. Childs

Brooke, J. (after stating the facts). Plaintiff in his original brief makes the contention that the only title held by defendants under their deed from Dunn is the assignment of a mortgage interest which was never foreclosed. While it is true that Minnie’s deed to Dunn and the land contract back from Dunn to Minnie and wife were understood by the parties to operate as security, merely, for the payment to Dunn of the amount of Minnie’s lumber bills, yet while the transaction amounted in equity to a mortgage it was nevertheless a deed in form and it required a deed from Dunn to revest the title in Minnie. McArthur v. Robinson, 104 Mich. 540. Dunn’s title instead of [25] being reconveyed to Minnie was conveyed directly to defendants at Minnie’s request and for a valuable consideration, to wit: the payment of Minnie’s debt to Dunn, amounting to $120. It is asserted that the answer and cross-bill should have been stricken from the files and no testimony received thereunder as being in violation of Circuit Court Rules No. 21, § 10, No. 24, § 1, and No. 26, § 2. With this view we are unable to agree. The bill set up a claim of title in and possession of the property in question and prayed for an injunction preventing*defendants from interfering with said possession. The averments of the bill were clearly sufficient to clothe the court of equity with jurisdiction of the parties and subject-matter of the suit. The answer and cross-bill asserted title and possession in defendants and prayed that the deed under which plaintiff claimed title be declared invalid. While a court of equity is not ordinarily the proper tribunal for the trial of title to real estate (Andries v. Railway Co., 105 Mich. 557, Cromwell v. Hughes, 144 Mich. 3), we are of opinion that where plaintiff himself had sought relief in a court of equity and had by the averments of his bill clothed it with jurisdiction, the court should retain same for the purpose of finally determining the rights of the parties and awarding complete relief. Hall v. Nester, 122 Mich. 141. In the plaintiff’s reply brief he argues that Minnie’s oral instruction to Dunn to convey to Childs directly upon payment to Dunn by Childs of his, Minnie’s, debt of $120, is insufficient under the statute of frauds (3 Comp. Laws 1915, § 11975); that what Minnie conveyed by his action was an interest in lands and therefore void under the statute. In this connection it must be remembered that the legal title stood in Dunn at the time Minnie instructed him to convey [26] to Childs; that he, Minnie, received a valuable consideration for said conveyance through the payment of his debt to Dunn and that the transaction was fully consummated by the payment of his debt and the making and delivery of the deed. Under such circumstances, of course, Minnie would be held to be estopped from making any claim to the lands in question. Faxton v. Faxon, 28 Mich. 159, 2 Herman on Estoppel, p. 1059. A case in principle not to be distinguished from the one at bar is Sullivan v. Dunham, 42 Mich. 518. In that case the vendee handed the land contract back to the vendor and the vendor convejred the title to another. The court said: “For the particular purpose to be accomplished in this case, however, this was completely effectual, for it is not pretended that Gordy’s title from Sullivan is defective for want of the written surrender. This, however, does not appear to us important, as we think the judgment may be sustained on familiar principles. “When the agreement sued upon was made between Sullivan and Dunham, each party was owner of -an interest in the land which was afterwards traded with Gordy. It was agreed between them that Sullivan might dispose of both interests to Gordy, accounting to Dunham for what he obtained, according to a certain basis which was agreed. He did trade accordingly, and Dunham now calls upon him to .account as he agreed. Now it is of no importance whether or not the authority given by Dunham to Sullivan was sufficient in law; for, as already stated, the title has passed to Gordy, and if Sullivan’s authority to trade with him was originally insufficient, Dunham by demanding his share of the price and bringing suit to recover, has affirmed the transaction, and ratified whatever was before imperfect. “The agreement that Dunham should surrender his contract in order that the trade with Gordy might be made, evidently meant no more than this: that he should give up the contract and make no further claim under it. It is not at all likely that the word ‘surrender’ was used or understood by the parties in any [27] technical sense. Dunham was. to permit Sullivan to dispose of his interest in the land: that was the Essence of the agreement, and it had been complied with. By his consent in the first place to what Sullivan proposed, and his acquiescence afterwards, he has precluded himself from asserting any further rights under the contract.” In the case at bar instead of handing his contract to Dunn, Minnie asserted (falsely as it now appears), that he had lost or mislaid the same. See, also, Miner v. Boynton, 129 Mich. 584. It is finally asserted on behalf of plaintiff that inasmuch as the contract from Dunn ran to Minnie and wife, Minnie alone could not surrender the same; citing Bauer v. Long, 147 Mich. 351. Under the facts disclosed m this case we think it fair to assume that Minnie, in the transaction, acted for himself and his wife. They had abandoned the farm several months before the transaction in question; had paid nothing upon either the $800 mortgage, the Dunn contract, or the taxes. It is unnecessary, however, to pass upon this question as it was not raised in the court below and therefore should not be considered in this court. Gleason v. Stone, 200 Mich. 187, and Ward v. Carey, 200 Mich. 217. We think it quite clear from a perusal of this record that plaintiff, after he discovered that the Lobes mortgage was discharged, conceived the idea of acquiring the farm in question for the amount of Minnie’s. debt to him plus $75 apparently due to Dunn. In furtherance of this design he obtained surreptitious possession of the place; maintained possession by force and thereafter invoked the aid of a court of equity to protect him therein. As was said in the case of Toledo, etc., R. Co. v. Detroit, etc., R. Co., 61 Mich. 9: “It needs no discussion to show that an injunction against a party’s holding his own possession is the [28] same thing as turning him out of possession, and is utterly illegal before a final decree.” Here defendant was in such possession of the property as its character and condition required and plaintiff’s invasion thereof was clearly unwarranted and in our opinion in bad faith. Plaintiff by his acts has violated the cardinal principle of equity jurisprudence that he who seeks equity must come into court with clean hands. For this reason alone his bill should be dismissed. The decree is affirmed. Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.