Volume 1 — Harrington's Chancery Reports (Mich.)

The bill in this case was filed in the circuit court of the county of Wayne, February 7th, 1837, before the organization of the court of chancery, and afterwards was transferred to this court.

Tins bill in this ease set’ forth and alledged that Thomas Rowland was, in the year. 1822, owner in fee simple, of lot number 59, in… Held: in his possession, the receipt of Abraham C. Canniff, bearing date October 21, 1828, by which said Canniff, who was then collector for the township and city of Detroit, acknowledged to have received from Rowland, the sum of $21 71, being the amount of Rowland’s county tax for said county for the'year 1828, and also the further sum of…

The bill in this case was filed 11th August, 1836, and stated that in the year 1832, the complainant and defendant, King, became jointly guarantors of and upon a certain promissory note made by one John Collins to John H. Kinzie, for the sum of $212, payable in 60 days.

The bill, in this case, was filed May 31, 1836, in the supreme court of the terrritory of Michigan, in chancery sitting, and set forth that the complainant came into the territory of Michigan in the year 1834, and had residedfin said territory ever since. That in the. month of January following, being then of the age of twenty years, was married to the defendant, who was then twenty-six years of age, or .there abouts.

The bill in this case was for a specific performance of a contract for the sale of real estate.

r This was a motion to dissolve an injunction. The facts in the case, as appdar from the bill, and answers of Jones and John L. Whiting, two of the defendants, are as follows: De Garmo Jones was owner of lots No. 186 and 187, in section four, in the city of Detroit; and February 1, 1832, he demised the same, with the warehouse thereon, to John L. Whiting and John J. Deming, for the term of five years, at a rent of #600 per year, payable quarterly.

The bill in this case, was filed, January 12, 1836, by Aaron Goff and Elsey, his wife, Elial Todd and Polly, his wife, and Mica Mudge, and Martha, his wife, against John Thompson, and Diana, his wife, and Carson McCurdy, and stated that Richard McCurdy, (who .was father of said Elsey, Polly, Martha, Diana and Carson,) was, in his Hfe time, seized and possessed! in fee, of the south-west quarter of section twenty, in township two south, of range ten east, in the county of…

The bill in this case was filed for a specific performance of a paróle contract to convey land. Held: and paid' the taxes thereon; that the complainant pursuant to said agreement, did deliver to the defendant, cattle valued at #80; that on the 10th day of July, 1835, the complainant tendered to the defendant, the sum of #94 50, being the balance of the consideration money and interest, which he refused to accept.

The bill in this case was filed September 20, 1838, and stated that complainant, Jackson, was the owner in fee of the west half of lot number 43, and that Cooper, complainant, was the owner in fee of the east half of said lot, and also the entire lot 42, both of said lots being in section six, of the city of Detroit, according .to the plan of the city, made and adopted by the governor and judges of the late territory of Michigan, pursuant to the provisions of an act of…

This was a motion to dissolve an injunction. The statement of the case is sufficiently set forth in the opinion of the chancellor. The bill, in this case, is brought to enjoin the defendants from removing obstructions and opening up a part of Congress street in the city of Detroit, and the complainant claims title from the governor and judges of the late territory of Michigan.

For a general statement of the facts in the first of these cases, see Disbroio vs. Jones and others, ante 48. In the case above referred to, Jones was proceeding to foreclose a mortgage by advertisement, under the statute, and Disbrow, claiming an undivided interest in the mortgaged premises as purchaser from one of the mortgagors, filed his bill and obtained an injunction restraining Jones from foreclosing the mortgage.

This was a motion for the appointment of a receiver. The bill alledged that the bank of Brest'had become a body corporate and politic, under and by virtue of the provisions of an act entitled “An act to organize and regulate banking associations,” approved March 15, 1837; that it commenced the usual business of banking, on or about the 30th day of September, 1838, and had continued to do banking business up to the time of the filing of the bill; that, January 10th, 1838, it…

This was a bill to redeem from the defendant, a tract of land conveyed' by Antoine Laselle to Thomas 'Bell, as a security for #150 loaned, and interest, September 20, 1829, by a deed absolute on the face, but by agreement at the time, merely a mortgage for the security for the money, #150 and interest, payable in one year.

This was an application for an injunction. The facts of the .case are sufficiently stated in the opinion of the chancellor. I. The charter of the bank of Pontiac, taken in connection with the law of 1833, gave the court of equity full jurisdiction over the bank, and authorized it to issue an injunction on an application like the present. Law's of 1833, 529; also the laws of the 2d, and extra session of the 6th legis. council of Michigan, 134.

The bill in this case was filed to compel the specific performance of a parol agreement to convey land.

The bill in this' case slated, that in January, 1793, Hyacinth Bernard dit Lajore and one Antoine Bougard took possession of and settled a certain tract of land on the north side of the River Raisin,… Held: improved and enjoyed as their common property. That about the time last aforesaid, they came to a resolution- of making a partition, and they agreed to divide the land as follows; viz: the easterly half to complainant, the other to Antoine.

The bill in this case was filed August 17, 1837, and states, that on or about the second day of June of the same year, the complainant possessed all the right, title, interest, and claim to a certain indenture of mortgage, executed by William Gilcrist to complainant, bearing,date April 8,1837, of certain premises therein described and set forth in the bill, conditioned to pay five hundred dollars, and interest, six months from the date thereof.

This was a bill to foreclose a mortgage, and stated that the complainant, August 11, 1830, purchased a quantity of drugs and medicines to the amount of $197 23 of the firm of Lawrence, Keese & Co., of the city of New York.

The bill in this case was filed May 23, 1839, and stated that November 16th, 1838, the board of supervisors of the county of Lapeej, assuming to act in the performance of the duties imposed on the county commissioners by the. revised statutes, after the county commissioners had been declared duly elected, but before they had qualified, proceeded to enter into a contract with one Norman Davison, by which the supervisors pretended to bind the county to pay Davison twelve…

Motion to dissolve an injunction. This was a creditors’ bill in the usual form, setting forth that the complainant, Daniel B. Eldred, recovered against the defendant Camp, and one Boville Shumway, two judgments in the circuit court for the county of Calhoun, and that executions had been duly issued on said judgments, delivered to the sheriff, and returned unsatisfied; that the sum of $621 28, with interest from November 10,1838, over and above all just claims by way of set…

This was a bill filed to foreclose a mortgage, and stated that September 9,1834, Enoch Jones executed his bond to Henry I. Seaman, John Van Wyck and Nathaniel Norton, in the penal sum of $10,000, conditioned to pay said Seaman, Van Wyck and Norton, their representative executors, administrators and assigns, tho sum of $5,000 on or before September 9, 1839, with interest payable semi-annually, commencing on the ninth day of March then next.

This was a creditor’s bill, filed September 5, 1838, and set forth that the complainants recovered a judgment in the circuit court for the county of Wayne, against Israel C. Stevens, May 24, 1838, for the sum of $506 23, damages; that, July 12, a fieri facias was issued on the judgment, returnable on the third Tuesday of November following; that the sheriff returned the fieri fiadas the 28th day oí August, with a return endorsed thereon, “that after due and diligent search,…

The bill in this case was filed September 5, 1839, and states that November 9, 1833, complainant and Justus Ingersoll, one of the defendants, entered into a co-partnership in the trade and business of tanners, curriers, and dealers in leather; that they were to be equally interested, and devote their time and skill to the management of the business, under the firm and style of “IngersoII & Kirby,” and were to share the profits equally.

This was an application on the part of the complainant, to dissolve the injunction granted in this case, to dismiss the bill, and discharge the receiver. A sufficient statement of the facts in the case, will be found in the opinion of the Chancellor.

The bill in this case was filed to rescind a contract on the the ground of false and fraudulent representations, and for repayment of money paid, &c., and states among other things that complainant purchased of Nehemiah O. Sargeant, (since deceased,) July 28, 1836, certain property in the village of Kent, state of Michigan, for which said property complainant agreed to pay the sum of #83,000; that said sum of #83,000 was paid and received as follows: for $5,000 a draft or…

The bill alledges, in substance, that Lambert Beaubien, was, in his lifetime, seized in fee simple, of a certain tract of land situated in the county of Wayne, described in the bill of complaint; that said Lambert died in the month of September, 1819, intestate, leaving Jean Bt. Beaubien, the father of the complainant, and thirteen other children, his heirs at law; that said Jean Bt.

The plea to the bill filed in this case, states'that another suit is pending in the supreme court for the same cause, and for the like relief prayéd by the bill filed in this court. The plea filed in this suit, is in itself, defective, radically. It does not meet any portion of the bill filed in the supreme court'which can make it appear to this court that both bills were for the samé identical matter, which ought to have been done.

This was a motion to correct the record, by amending the decree entered at the term previous.

This was a motion to dissolve an injunction. The defendants, at a former term, had obtained leave to amend their answer. The papers on file, claimed by the defendants to be amendments, were drawn in the form of affidavits, and do not purport, either in the body or indorsement of them, .to be amendments to the answer on-file. The complainants object to hearing the motion to dissolve the injunction, on the ground that no amendment to the answer has been filed or served.

Motion to dissolve an injunction. The bill filed in this case, is framed with a double aspect. It sets up the return of an execution unsatisfied, and the issuing of another execution. It seeks to reach the equitable interests of the defendant, and also to aid the second execution.

Motion to dissolve injunction, for want of equity. The bill states, that in December, 1838, Thomas Emerson was largely indebted to the Bank of Windsor, and a judgment had been recovered against him, by the bank, to the amount of #59,000, upon which the latter threatened to issue a ca. sa.; that E. R. Campbell and Rufus Emerson proposed a compromise, in the name of the bank; that they represented themselves as the agents and attorneys of the bank, with full power to bind…

The bill in this case is filed for the collection of certain bills and drafts of the Saginaw city bank; for a discovery, and the removal of Norman Little, the receiver heretofore appointed, and prays for the appointment of a new receiver, &c. The defendants plead to all the discovery prayed in the bill, and to all the relief prayed, except as to the dividend to be received from the receiver, and answer to nearly all the matters charged in the bill.

The bill in this case was taken, pro confesso, against all the defendants; defendant Williams moves to set aside the order, pro confesso, and for leave to answer, which motion is founded on the affidavits of defendant Williams and his solicitors.

This was a bill to foreclose a mortgage, and slates, that about May 28, 1838, Carl Brockhousen and wife, executed a mortgage to Clinton E. Atwater and Heniy A. Delavan, the complainants, (to secure the payment of four hundred dollars, in six months from dates) on the south-iwest quarter of the northeast fractional quarter of section, two, in towmship six, south of range three west, containing forty acres-; also, the northeast quarter of the south-west quarter of section…

The bill in this case was filed for a partition, and states that Samuel Wheeler and Richard H. Root (both deceased) of the state of Ohio, were, in their lifetime, seized in fee as tenantsin common, of certain village lots in the village of Ann Arbor, in the state of Michigan; that said Wheeler died intestate, leaving five children, his heirs at law.

This was a motion to set aside the default entered, in this case, and the service of the subpoena, on the ground that the suhpoena was served out of the state. It appeared that the subpoena was served on the defendants in the state of Vermont. The service of the subpoena was irregular and void; the service and all subsequent proceedings must, therefore, be set aside. R. S., 366, 367, 371; Dunn vs. Dunn, 4, Paige R., 425. Cited 1 Hoff, Pr., 110 to 112, n.

This was an application at a special term, for confirmation of a decree to dismiss the bill. at a special term, on affidavit of the entry of an order for service of copy .of the bill in 15 days, as required by rule 20 of this court, and of the due service of notice of the order, and also, stating that no copy of the bill as required by the rule had been served, and that defendants have entered a decree in vacation with the register of the court, dismissing the bill with…

Motion to dissolve an injunction. Moved, in tendering admission of due service of a notice of the motion that the injunction issued in this cause, be dissolved, for want of equity in the bill.

The bill of complaint was filed in September, A. D. 1836, and states that in May, A. D. 1825, one Jesse Hicks, of Wayne county, Michigan, was seized and possessed of a certain farm of 271 33-100 acres, on the River Rouge, in said county, called the Hicks farm; and that said Jesse duly made and published his last will, dated May 7, 1825; the provisions of the will are set forth as follows: 1st. My will is, that all my just debts and funeral expenses be paid out of-my personal…

The bill in this case; charged that the defendent, William H. Elmore, had obtained goods of the complainants, who are merchants in New York, to the amount of about $600, (but did not otherwise describe the goods,) on the credit of one Frederick W. H. Elmore, by representing to the complainants that he was the agent of F. W. H. Elmore to purchase goods for him on a credit; that this representation as to the agency, was entirely false, ; nd that William H. Elmorebpurchased…

The bill in this case stated that in 1816, Robert Smart, now deceased, obtained a deed of conveyance of lots number 61 and 62 in section three in the city of Detroit, representing himself to be the Assignee of Catharine Bailey, the Assignee of John Murphy, the Assignee of David McLean; to whom the lots had been granted by the Governor, and judges of the Territory of Michigan, acting as a Land Board, but that the deed making said grant was not delivered by the Governor and…

Bill filed March 5, A. D. 1839, for an injunction to restrain the defendants from laying out and working a highway.

Bill to rescind a contract on the ground of fraud. The statament of the case is sufficiently given in the opinion of the court. The conduct of the parties shows the merits of the case.

The bill in this case states that complainant endorsed for the sole benefit and accommodation of one Wessel Whitaker, a note made by him dated July 5th, 1837, payable ninety days after date to the order of E. T. Clark and Isaac O. Adams, at the Rank of Michigan for the sum of $1000.

This was a motion to amend a plea. The motion was based upon an affidavit setting up certain facts which had come to the knowledge of the defendants after the original plea had beenvftled in the case. There can exist no reason against the amendment of a plea to the merits which docs not exist against the amendment of an answer, other circumstances being the same. Where is the difference ? Why should a defence be excluded in the one case and not in the other ?

Motion by complainant for a receiver, and on the part of the defendant for a modification of the injunction. The bill states that December 19, 1817, the bank of Michigan was incorporated, with capital of $100,000; was organized and went into operation. That in accordance with the provisions in its charter, the capital was afterwards augmented to the amount of §500,000.

This was a demurrer to a supplemental bill filed by leave of the cour t, 1. That the bill is exceptionable on the ground that the complainants have incorporated in it as well matter, which occurred previous to the filing of the original bill, and which might be introduced by amendment, as things which occurred subsequent to the filing of the original bill, by way of supplement. 1 Paige 200, 3 Id, 294, 4 Id. 127; Mitfords Pl. 165; 17 Vesey, 143. 2.

The hill in this case states that the complainant, and defendant Albert L. Vail, being copartners June 25, 1840, dissolved. That the complainant sold out his interest in the copartnership property to said Vail, and received from Vail his pay therefor, and that Vail at the same time executed to the complainant a bond in the penal sum of $5,000, conditioned that said Vail should pay all the partnership debts.

Bill filed by creditors to set aside a deed,of assignment on the ground of fraud, or to enforce the execution of the trust under the deedv To this bill the defendants demurred. 1. The deed from Dequindre to Desnoyers created a trust which Desnoyers accepted by executing the deed and putting the same on record. See Jeremy’s Eq. 138. The transcript of the record certified is evidence of itself of the contents thereof and of the due execution of the deed.

Bill to annul and set aside a contract and to compel certain notes to be delivered up and cancelled. States that in February, 1839, complainant entered into an agreement with defendant to purchase certain lands which the defendant represented as belonging to him, as being good lands situated near a mill with some thirty acres cleared or improved land.

The bill in this case states that on the 20th December, 1836, Cyrus Shepherd executed to Horace R. Jerome two notes : one for $240 payable in one year, the other for $240 payable in two years; on the sixteenth January, he executed to said Jerome a mortgage to secure the notes. That on the 2nd of April, 1838, Horace R. Jerome sold and assigned the notes and mortgage to complainant, for the consideration of $500.

The bill of complaint in this case was filed Nov. 16, 1840, and sets forth that on the 6th day of June, 1837, John Hale was indebted to complainants, in the sum of $3038,37, for goods, &e., and the said Hale being seized of, or prelendingto be seized of the fee of lots 16, 17, and 18, on the Military Reservation, so called, on the south side of Congress street, in the city of Detroit, free from all incumbrance, executed with his wife Felicite, a mortgage on the premises…

Demurrer to a bill for discovery and relief against judgments at law. The opinion of the court contains a sufficient statement of the case. Bill seeks to enjoin two judgments recovered before a Justice of the Peace by default. The fact alledged, might constitute a good defence at law if pleaded. No reason is assigned for not making a defence at law, nor does it appear why a discovery was not sought while the action was pending at law, and before judgment rendered.

Bill states that in 1838, Henry Connor and John Allen were partners,owning certain mills and other property to a considerable amount, that they carried on the milling business as partners, until September, 1840, when Connor died; that Allen had always been in actual possession and occupation of t^e premises, and still was in actual possession and occupation and was running the mills and manufacturing lumber from logs cut on the partnership lands, and on the lands belonging…

The original bill in this case was filed in June, 1837, by Salmon H. Matthews. In July following, a cross bill was filed by Millard the principal defendant in the original suit; answers were put in by Matthews and Millard respectively ; as to the others the bills were taken pro. confesso.

íhe bill of complaint alleges that on the 6th of March, 1836, Tunis S, Wendell, who was th'en acting as trustee of the complainant, Cathai'ine Schwarz, inquired of said Cathariiie whether it was not probable, that the interests which the tíd-héins of Abraham Sheridan held in common with said Catharine in 17' inlots, and 4 out lots in the Borough of Erie, Pennsylvania, could be purchased ; adding at the same time that he had received an offer for the whole property.

Motion to dissolve injunction on bill and answer. The bill of complaint alleges that the plan or plat of the village of Adrian was laid out in 1827-8 by Addison J. Comstock, one of the defendants, who was the owner of the lands constituting the same. The plat of said village was duly recorded in the Register’s office as required by the statute. On the plat lot number 14, was given by the proprietor to the county of Lenawee, for a court house and jail.

The bill in this case states that Dec. 8, 1838, defendant became the purchaser.of the N. E. qr. of sec. No. 14, town 7 S, range 17 W., containing 159 28-100 acres ; also the N. W. fr qr. of sec. 13 town 7 S. range 17 W., containing 136 46-100 acres. That soon after such purchase defendant mortgaged the same to George W. Walker, to secure the sum of $2,500 which, according to the belief of complainant was for the purchase money of said premises.

The bill in this case was for the specific performance of a contract, and for the settlement' of an account between the parties; and the prayer Was that the balance found due might be applied on the contract.

The bill of complaint was filed by William E. Sill, trustee for Jonathan Dwight, Henry Dwight, Edmund Dwight, John Ward, and Benjamin Day, for the foreclosure of a mortgage made by the defendant to E. P. Hastings, President of the Bank of Michigan, in trust for said bank for the sum of $12,000. The bill states thatE.

This was an application to sot aside a decree pro confesso, and for leave to file an answer. • It was based upon affidavits excusing the delay, and the answer proposed to bo filed if the decree was set aside.

Bill for specific performance of a contract. The facts, as appears by bill and answer, were, that Leander S. Dow and William Bort gave their bond to one George Harlan in the sum of $3,000, conditioned for the conveyance to Harlan or his assigns, within twenty-four hours after demand, of the S. E. quarter of sec. 6, town 8 S. range 17 west, in the State of Michigan, at any time within one year from date, provided Harlan or his assigns should previously pay the sum of $200 in…

The complainants obtained a judgment against the defendant Swift in the Circuit Court for the county of Washtenaw, on the 13th December, 1839, for $686,44 damages, and $43,72, costs of suit. On the 31stof December, 1839 txfifa was issued, directed to the Sheriff of Washtenaw county, where Swift resides, against the goods and chattels, lands and tenements of Swift, and delivered to J. K. Wal lace, Deputy Sheriff, on the first day of January, 1840.

A bill filed after the return day for want of equity in the bill. This was a motion to dissolve injunction for want of equity in the bill. The facts will appear sufficiently in the opinion of the Court.

This was a rule for the defendant Brown to show canse why an attachment should not issue for contempt in not obeiúng a master’s summons to appear at the master’s office and submit to an examination as to the rights and credits of the defendants, under a creditor’s bill.

To the answers, replications had been filed, and testimoy taken ; at the last term of the court, the parties by their solicitors entered' by consent, a rule granting leave to the complainants to file an amended bill of complaint. A motion was now made to set aside and vacate the order or rule for leave to file an amended bill.

The bill in this case was filed for the purpose of setting aside a foreclosure of mortgage under the statute and to redeem the same. There was a dispute between the mortgagor and mortgagee as to the real amount due upon the mortgage. An injunction was granted on the filing of the bill to restrain the defendants from perfecting their proceedings under the statute foreclosure, and from procuring a deed from the Sheriff.

This was a hearing on demurrer. The bill was for á discovery, and stated that some timo in the month of January, 1841, the defendant filed his bill in this court against complainants and others, as being or having been directors and stockholders of an institution established under the general banking law, and called the Clinton Canal Bank, charging them with a fraudulent combination to injure the creditors of said corporation or association, setting forth various particulars…

This was a hearing on demurrer. The bill states that under the act known as the general banking law, books were opened at Pontiac, in the county of Oakland, on or about the twentieth day of November, 1837, to receive subscriptions for a banking association to be located at that place, and called the “ Clinton Canal Bank, ” with a capital stock of fifty thousand dollars, to be divided into one thousand shares of fifty dollars each.