42 Mich. 121 | Mich. | 1879
This is an appeal in chancery by com
On the 9th of January, 1878, complainant recovered judgment in the Superior court against the defendant John T. Gibson for $262.75 and $12 costs; that just after the report in .complainant’s favor had been filed by referees to whom the case had been referred, and on January 3d, the debtor John T. Gibson deeded to his wife, the defendant Mary, lot 7 of the subdivision of lots 12, 13 and 14 of the Labrosse and Baker farms in the city of Detroit, then owned and occupied by him, without consideration and with intent to defraud complainant ; that on the twenty-eighth of May, 1878, complainant caused an execution on said judgment to be levied on said lot 7 and also on several other parcels, and on the same day procured the levy to be filed in the office of the register of deeds for Wayne county; that the parcels levied on apart from lot 7 are of small value, and for reasons stated not available for any thing beyond a trifling amount; that on the 31st of May, and three days after filing of the levy, the defendant Mary E. Gibson, at the instance and in the interest of her husband, the defendant John T., deeded said lot. 7 to the defendant Elizabeth D. Knight, a resident of Cape Yineent in Jefferson county in the State of New York, for $2500, and for $950 thereof took back a mortgage on the lot; and that on the third day of June Mrs. Gibson transferred the mortgage to the defendant William H. Gibson, a brother of John T., and that the mortgage stands of record in the name of said William H. Gibson; that William H. Gibson was cognizant of the levy on lot 7 and of the fraudulent purpose of said John T. and his wife to prevent complainant from gaining any thing by the levy.
The bill charges the defendants with fraudulent intent, and avers that they respectively had notice of complainant’s equities, and the court is asked to set aside the
The defendant William H. Gibson pleaded that he was a Iona fide purchaser of the mortgage and added a demurrer, and also made answer to such matters as it was thought might be claimed to operate against the truth of the plea if left unanswered.
The .plea having been allowed, a replication to it was filed and the parties went into proofs upon the issue so raised, and the court after a hearing on these proofs decreed upon the plea and dismissed the bill as to William H. Gibson, and the appeal is from that decree. In these circumstances, and whilst the question as to whether Elizabeth Knight purchased Iona fide is left in abeyance, the right of complainant to insist here on a decree against William H. Gibson on his plea is not evident. But as counsel have not noticed this condition of the case, and our opinion is against complainant on his own ground, we shall not base our conclusion upon any supposed infirmity in the present shape of the litigation.
The substantial controversy here is whether the description in the levy of the lot 7 in question was sufficiently full and correct to charge the public with notice through the certificate placed on file.
The proposition is stated in this way because the question is not what sort of description might suffice as against parties having actual knowledge, or what might be deemed a sufficient description in itself considered, to constitute a valid levy; but it is what is sufficient to make the filed certificate afford constructive notice. Anri we are satisfied that this levy lacks the requisite certainty.
The discrepancy is very glaring. The lot we are in quest of is not a portion of the surface which is defined by natural marks or distinguished by some name or other feature which is notorious, but it is a specific area which might perhaps be indicated by proper abuttals, although the better description, if not the necessary one, is by reference to the plat and by the number of the lot and block as given on the plat, together with such other descriptive facts as may be practicable and essential for the purpose of identification.
Now the levy gives no abuttals and points out no plat. The lot 7 it specifies is said to belong to the subdivision of lots 12, 13 and 14, and not to John Gibson’s subdivision of lots 12, 13, 14 and 18 according to the recorded plat. Again it does not assign the subdivision to any block or mention any block. The John Gibson subdivision is on block 13. We have then in the one case a John Gibson subdivision of four specified lots on a specified block according to a recorded plat, and in the other a subdivision of three specified lots made by some one not named, and not located on any block and not referred to any plat.
It is, we think, not possible to hold that the lot 7 in the levy was so described there as to affect the public with notice, through the certificate, that the lot 7 of the John Gibson subdivision was meant.
The difficulty is not merely that the description in the levy has fewer badges of identification than were
