45 Mich. 345 | Mich. | 1881
This is a cause wherein the bill was filed in aid of an execution levy. Jonathan Welsh is the execution debtor, James Welsh, his brother and grantee, and Sarah F. Belknap a mortgagee from James. The facts are not complicated. Jonathan Welsh in anticipation of proceedings against him by complainant at law, is charged to have conveyed lot 1 in block 8 of private claim 609 in Detroit, on the 15th of December, 1874, to his brother James, for a nominal consideration of $2000. The debt for which complainant prosecutes was for moneys belonging to the children of Alpheus Coon, of whom James was guardian, but these funds had got into the hands of Jonathan. Some delays were incurred in getting matters into shape for suit, and it was during this period that the deed was made which is claimed to have been fraudulent. In February, 1875, complainant brought suit in attachment and this lot was attached.
There can be no doubt of the invalidity of the deed to James, as against creditors. He does not pretend to have paid more than $100 previous to the discharge of his, mortgages, and it is doubtful whether he paid that. The brothers were both mixed up in the affairs of this trust fund, and it is plaip that the purpose of the deed was to hamper the title. Mrs. Belknap’s counsel recognized the attachment as a lien which must be got rid of to clear the title, and required the money to be tendered for that purpose. Mrs. Belknap, therefore, was not a mortgagee without notice.
We do not think the tender amounted to anything. Even if we assume the effect of a tender at that time would have been what the parties appear to have supposed, it was not
No sum of money whatever was tendered, and no tender in the proper sense made at all. There was no more than a proposition or offer to pay what might be ascertained as the proper sum, but the parties tendering had not informed themselves and took no steps to do so beyond preparing a receipt in blank to be filled up when the supposed judgment and interest should be figured up. This receipt purported to discharge the judgment. Prentis refused to sign it. There is some conflict as to what reason he gave, but inasmuch as no sum of money whatever was produced or offered, all that it could have amounted to at best was a manifestation of readiness to make payment when the proper amount was figured up. This was no tender of payment. But if it had been, inasmuch as the tender was not kept good, it could not have availed in this ease. It was not made on a judgment, which is a finality, but during the pendency of the suit, when it had not been judicially determined that the verdict should stand as the basis of a judgment. The effect of a tender during suit or before judgment must always depend more or less on the views of the court, and rarely affects more than the liability for costs. It cannot discharge the debt until paid. The law has provided other ways of dissolving or releasing attachments, and we are not aware of any rule which would make a tender have that operation. And if it did, that would not make the transfer valid or prevent assailing it on execution except as to intervening bona fide purchasers or encumbrancers; and no one in this suit holds that position.
The complainant is entitled to a decree holding the deed to James and the mortgage to Mrs. Belknap void as against the
The decree dismissing the bill must be reversed with costs of both courts and a proper decree entered in accordance with these views.