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The defendant husband was not entitled to an accounting,

where he abandoned the farm mortgaged and went to Canada, leaving his wife in possession of the farm and some of the personal property, in order to escape pressing obligations due to creditors and other mortgagees, and where he borrowed money from her from time to time and it appeared that the question of the amount obtained by the complainant from the farm was involved in an

action on the law side of the court. 3. FRAUDS, STATUTE OF-PARTIES–ORAL CONTRACTS–PART PERFORMANCE, Where defendant had become incompetent and been com

mitted to the charge of a guardian, and his wife claimed to hold various claims against him, including two mortgages upon his real property, of which she remained in possession, and where she orally agreed with his guardian and heirs to pay the heirs of defendant a stated sum for their interest in his property, giving notes to them for the agreed consideration, before a writing satisfactory to all parties had been executed, specific performance could not be granted the guardian of the husband in a foreclosure suit to which none of the heirs were parties de. fendant, and a cross-bill was properly dismissed even if


Agreements to sell or convey the prospective interests of

heirs in their living ancestor's estate are not regarded with favor and are rarely, if ever, sustained, without the consent of the ancestor, who is generally held to be en. titled to know the situation of his heirs with reference to each other, to himself and his property. His insanity or incompetency is not a ground for making an exception to the general rule.

Appeal from Cass; Des Voignes, J. Submitted April 15, 1914. (Docket No. 36.)

(Docket No. 36.) Decided July 24, 1914.

Bill by Agnes Stevens against Daniel W. Stevens for the foreclosure of two mortgages. From a decree for complainant, defendant appeals. Affirmed.

Clarence M. Lyle and Marshall L. Howell, for complainant.

Stewart & Sabin and Stewart & Jacobs, for defendant.

STEERE, J. This bill was filed on November 7, 1912, for the purpose of foreclosing two mortgages given by defendant on his farm of 288 acres located in Cass county, Mich., one for $5,000, given directly to complainant, and the other for $2,001.22, given to the Jones Exchange Bank, of Marcellus, Mich., but subsequently assigned to her. Owing to the fact that the principal was not yet due on the latter mortgage, and the amount of interest in default was small, it was withdrawn from consideration by permission of the court, and on motion of complainant's solicitor the bill was dismissed as to it without prejudice. Upon the hearing a decree was rendered foreclosing the $5,000 mortgage, given complainant, for the sum of $6,587.12, being found due for principal and interest accrued since said mortgage was given on April 20, 1909.

At the time of these proceedings defendant was mentally incompetent. An answer with cross-bill was filed by Samuel Stevens, his son and general guardian, admitting the execution of said mortgage, but denying its validity and asserting it was without consideration, alleging that complainant had contracted to purchase the interests of defendant's heirs in said farm, had been in possession of and realized profits from the same, praying that said mortgage be declared null and void, and asking affirmative relief by an accounting, decree for specific performance of contract, and an injunction to restrain certain proceedings at law which had been commenced by her.

Defendant and complainant were husband and wife, having been married in the State of New York in 1904. He was a Michigan farmer, a widower well along in years, and had six children by his former wife, all living and of age when this suit was heard. She was then about 40 years of age, had not been previously married, was a resident of Canada where she owned some inherited property both real and personal, and had followed no occupation beyond helping in the household of her parents when they were living. She had little knowledge of business matters, her interests being cared for by an attorney and agent. She first met defendant at her sister's home in New York, where she was visiting and where they were married a few months later. While their courtship was in progress defendant tested her sincerity by borrowing $1,500 from her. Immediately following their marriage she accompanied him to his farm in Cass county, where they thereafter made their home and lived as husband and wife until shortly before this suit was begun, excepting when he was absent in the Northwest at intervals as hereafter related. Complainant was without previous experience in farm life, but appears to have adapted herself to it and been a faithful helpmate to defendant, not only caring for his household but interested and helpful in farm matters. She testifies :

"When I went up there on the place with him, I had to do a little of everything. I had to milk, and I often fed the stock. I had never done that before. It seems I had to learn."

Two children were born of the marriage, a boy and a girl, respectively 8 and 6 years old when this suit was heard.

Though defendant had a large farm with a full complement of stock, tools, etc., and was apparently operating on a rather large scale, his methods were such that he was not successful financially. His farm was mortgaged and he was in debt when married to complainant. This condition continued and his indebtedness increased. It is clearly shown that he continued to apply from time to time the test of loyalty he found so satisfactory during their courtship and frequently borrowed money from complainant. She not only helped him financially at different times by direct loans, but by paying items of his indebtedness and expenses of the farm. She is shown to have mortgaged her Canadian property at one time to raise money for her purposes in Michigan; the mortgage being yet unpaid.

There are four mortgages upon defendant's farm, the one for $5,000 to complainant being the third, and the one for $2,001.22 which she holds by assignment being the fourth. Two earlier mortgages aggregate $6,000 principal, with considerable accrued interest.

As his obligations increased and creditors were pressing him, and about the time he gave his wife this third mortgage, defendant conceived the project of retrieving his fortunes by journeying to and locating upon land in the Canadian Northwest. To that end, in May, 1909, he took from his farm and loaded a car with supplies, farming implements, tools, stock, etc., including two spans of horses, and started for Alberta, leaving complainant at home to run the farm with what was left as best she could; the parting though not final test of her loyalty being the requisite money to pay freight on his car to Alberta. Defendant located 320 acres of wild land in Alberta and proceeded to subdue and improve the same, devoting most of his time and all the money he was able to secure to that purpose until 1911. He was back home from time to time and gave directions as to the management of the Cass county farm, but left substantially all the burden of it on complainant, and was constantly importuning her by mail for more money, in an interesting series of letters, freighted with accounts of the


country and the hardships he experienced, prayers, profanity, and great expectations. Her style of correspondence was somewhat similar and responsive from her viewpoint, telling of her efforts and the troubles which beset her in trying to run the farm, complaining of his having notes "all over —'s creation," at one time inquiring, in answer to an appeal from him for more money, “what was the use of your leaving me here, knowing you was in debt to everybody?” In a letter written by him on February 28, 1910, to Mr. Jones, of the Jones Exchange Bank, where he had borrowed money, he throws some light on his reason for going West and his financial embarrassments. It is, in part, as follows:

“I suppose you think I never intend to sign your note and answer your letter. I tell you – - I don't live in Michigan now.

It is almost 40 miles to town and the last three weeks it has stormed and blowed so bad and the most of the time it has been down to 38 and 40 degrees below zero and for 20 miles there ain't a house on the road.

I told her (complainant) in the fall to go and see you. She wrote me she had been and seen you and fixed it up all right and I supposed it was satisfactory. I am willing to give you a mortgage, but I would like it to run 6 years because I will not get the deed of the last 160 for six years. Then will sell out here or back in Michigan and pay up.

I came out here so as to save the home place. will draw up or have one drawn up running six years, so whenever I can pay you $300 a year

that will give me a chance for my life and I will get the old lady to discharge her mortgage on the farm and take one out here.

Now I think between God and man I have agreed to do what is right. If you will send me such a mortgage I will sign it and send it back as quick as I can and if she won't do so, then I will come back and you may jump on the farm and take it."

He was home three times in 1909 and once in the latter part of 1910, remaining during a portion of the





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