30 Mich. 355 | Mich. | 1874
This was an action of ejectment brought by the plain.tiff in error, and tried in the Livingston circuit before tbe
The plaintiff on the trial deduced title from the United States to Olney Hawkins, the first conveyance to him being December 14, 1838. Hawkins conveyed to one Quackenbush, February 5, 1840; Quackenbush and wife conveyed to Hawkins, August 10, 1840; and Hawkins, by quit-claim deed, dated January 25, 1859, conveyed to Roswell Barnes,, the original plaintiff in this suit,, and of whom the present plaintiff, who has been properly (substituted, is the sole heir.
This was the claim of title under which the plaintiff claimed, and without any counter showing it constituted a jprima facie case on her part.
But the defendant ‘claimed under, and introduced, first, a mortgage upon the same premises, executed by Hawkins to one Virgil Booth, dated August 17, 1839, for one thousand one hundred dollars, payable in six months; second, an assignment of said mortgage to Joseph Green, purporting to have been executed by Rhoda Booth and Philip Bach, administrators of Booth’s estate, dated February 24, 1863, recorded June 9, 1864; third, a quit-claim deed from the widow and heirs of said Booth and from E. W. Morgan and wife, to said Green, dated February 25, 1863,. recorded June 9, 1864; fourth, a quit-claim deed from said Green to defendant, dated March 8, 1864, and recorded-June 9, 1864.
The defendant also introduced evidence tending to show that prior to the time that Hawkins executed his quit-claim deed to Barnes, he had executed a quit-claim of the same property to Robert D. Power for the consideration of fifty dollars; that when Barnes requested Hawkins to deed to-him, he told Barnes of this prior deed to Power, but that Barnes presented to him what purported to be a written request of Mrs. Power and William M. Power, administrators on Robert D. Power’s estate, to execute a deed to-
But the court, in his finding of facts, finds (and this is not questioned in the case), that “on the 8th of January, 1867, Barnes obtained a quit-claim deed from the widow and heirs at law of said (Robert) Power, of their interest in the premises; that no consideration was paid for said deed, and there is no evidence that Barnes paid Hawkins any thing for bis quit-claim.”
The court further finds (as from the evidence he' was well authorized to find) that the mortgage in question “ was given by Hawkins to Booth to secure,a loan of four hundred 1 dollars and the percentage, and the balance of the eleven hundred dollars was added to it on the supposition that it would take two years to foreclose the mortgage;” that “ the amount paid by Hawkins an said mortgage did not exceed two hundred and fifty dollars or three hundred dollars. [The evidence of Hawkins' tended to show that this was made in two payments, the date of which he could not give, but that one hundred and twenty-five dollars of it was paid about the date of the mortgage.]
The. court also finds that Booth died in August, 1859; that “the administrators on Booth’s estate, viz.: Rhoda Booth and Philip Bach, assigned said mortgage to Joseph Green on the 24th February, 1863, which assignment was duly recorded on the 9th day of June, 1864.” Exception, however, is taken to the evidence on which the court found the fact of administration on this estate, and that these were the administrators; and this is a main question in the case.
The court further finds that' “ the heirs at law of Booth
From this statement of the case, it will be readily seen that the defendant claimed to have taken and to hold possession as mortgagee, or rather as assignee of the mortgage, as well as the grantee of the heirs of the mortgagee, and to these questions, accordingly, the counsel have in their briefs directed most of their argument. These are, in fact, made by the counsel the central or main questions in the case, and all the other questions raised are dependent and hinge upon this. But I do not think that the question' of the right of the mortgagee, or his assignee, of such a mortgage, to take or hold possession, or any question dependent upon this, is presented, or can properly be decided upon this record.
To enable the defendant to raise this question, or to insist upon the right of a mortgagee to take and hold pos
By the statute in force when this mortgage was executed, (Rev. Statutes 1888, Part 2, Title IV., ch. 8, § 10), it was provided that “when any mortgagee of real estate, or any assignee of such mortgagee, shall die without having foreclosed the right of redemption, the mortgaged premises, and the debt secured thereby, shall be considered as personal assets, in the hands of the executor or administrator, and shall be administered and accounted for as such; and if the mortgagee or assignee shall not have obtained possession of the mortgaged premises in his life time, his executor or administrator may take possession thereof, by open and peaceable entry, or by action, in like manner as the deceased might have done if living.” „
This section, while it recognizes the right of the mortgagee, his executor and administrator, to take possession, just as clearly shows that this right did not descend to the heirs of the mortgagee, and that no estate or interest vested in them as such. It is obvious, therefore, that a mortgage executed subject to the provision of this statute, did not convey to the mortgagee the legal estate, even after forfeiture for non-payment, to the extent of making the mortgagee’s interest descendible to heirs, instead of execu
Whatever right, therefore, Green or defendant may have obtained in this mortgage, must have been derived from the instrument of assignment executed by Rhoda Booth and Philip Bach, purporting to be, and describing themselves as administrator and administratrix of Booth, the deceased mortgagee.
But there is not, in my view, in this record any legal evidence tending to show that administration had ever been granted on Booth’s estate, or that Philip Bach or Rhoda Booth were ever appointed as administrators. The only evidence introduced or offered for this purpose — and this was objected to as incompetent, excepted to, and error is assigned for its admission — was the parol evidence of witnesses that these persons acted as administrators on that estate; and one witness testified that he had assisted them in doing business in the probate court, where they were recognized as such.
Proof of administration granted upon an estate, and who axe administrators, does not fall within the rule applicable to the proof of official character in the case of a public officer', or the officer of a corporation, where it is in general sufficient, grima facie, so far as affects the rights
But this rule as to public officers is founded in some measure upon the acquiescence of the public, and the natural presumptions arising from it, and in the case of a corporation, the acquiescence of the corporation, as whose officer he publicly professes to act. But when the office or trust is rather in the nature of a private one (Short v. Lee, 2 Jac. & W., 468); or when the appointment is the result of the proceedings or determinatiou of a court, such as the assignee of a bankrupt (Pasmore v. Bontfield, Vol. 1 Cow., Hill and Edwards' notes to Phil. Ev. (5 ed. 1868), p. 598; Starkie's Ev., by Sharswood, pp. 647, 717), this kind of parol proof is not sufficient, but the appointment must be strictly proved in the ordinary way; and the appointment of administrators here, being the judicial action and determination of a court of record, it should be proved by the letters of administration themselves, or by the record, or a certified copy of the proceedings, or of the appointment, as the action of courts is proved in' other cases. — 2 Cow. H. & Ed. notes, above cited, 452 to 454; 1 Green. Ev., § 519; Starkie's Ev., 717, 693, and 694. We have been cited to no case, and I have found none, in which parol evidence, like that received here, has, if objected to, been received to prove administration, or the appointment of administrators, to establish a title through them; and I am satisfied it was entirely inadmissible, and its admission erroneous. The defendant, therefore, not showing that he had obtained any right in or under the mortgage, did not show himself in a position to raise any question of fraud, or want of consideration,- in the quit-claim deeds from Hawkins, or from the heirs of Power, if such fraud or
As all the other questions raised and argued by counsel are dependent upon the questions above decided, and this disposes of the case, the judgment must be reversed, with costs, and a new trial awarded.