45 Mich. 390 | Mich. | 1881
The complainant on the 27th day of February, 1878, filed the bill of complaint set forth in the record to foreclose a mortgage dated February 21st, 1855,
March 2d, 1859, Henry C. Hogadone assigned all his rights under said certificate, to his brother Edwin D. The consideration recited in this certificate is $500, and on the twenty-sixth day of the same month, Edwin D. assigned his interest to Phebe J. A like consideration is recited in this assignment.
It is now claimed that Edwin D. was a bona fide purchaser, having no notice of said mortgage, and that Phebe J., claiming through a bona fide purchaser, is entitled to the same protection that would have been afforded to him. The recitals in the assignment have no tendency to show actual payment, and Henry C. and Phebe J., the only witnesses testifying upon the subject, utterly fail to show any payment made. It is true they say this consideration was paid, but how it was paid, or any of the particulars, they fail to state. ¥e have no doubt whatever but that the whole transaction-was a' mere cover and sham.
It was also urged by the defendant that the cause of action was barred by the statute of limitations. A number of payments are indorsed on the note, the last dated in March, 1866, and signed by Henry C. Hogadone, the maker of the note. Besides this, proof that such payments were made was given, and that Henry C. in making them was acting under authority from his wife, so that the case was taken out of the statute, and the remedy under the mortgage not barred.
The decree of the court below must be affirmed with costs.
