182 Mich. 248 | Mich. | 1914
In this case the bill of complaint was filed to have a certain deed declared to be a mortgage, and to foreclose the same. The defendants are husband and wife, and owned the land in question, 80 acres, as tenants by the entireties. The dealings between the parties leading up to this suit are substantially as follows: In April, 1910, defendant William R. Looker came to complainant and stated that he desired to borrow $1,800, and to secure such loan would mortgage 120 acres of land, including the land
When the year had expired defendant Looker, not being able to pay complainant anything, the contract was surrendered, and complainant gave to said defendant a written option to purchase the land within one year for $3,040; that being the amount due complainant under the contract, including interest, insurance, taxes, and interest on the old mortgage paid by complainant. Defendant William R. Looker
“Q. You have seen this Exhibit A [the deed] ? You don’t deny that being your signature?
“A. It looks like my signature, but I would not say it was.
“Q. Do you say it isn’t? I want you to be sure about it. I want you to say whether it is or not. You know your signature. Tell the court whether it is yours or not.
“A. All I can say, it looks like mine.
“Q. You can say whether it is your signature or whether it is not?
“A. I could not say.
“Q. You could not say?
“A. I signed papers like that.
“Q. Don’t you know your own signature when you see it?
“Defendant’s Counsel: She says it looks like hers, and she doesn’t deny it.
“Court to Defendent’s Counsel: You don’t deny it?
“Defendant’s Counsel: No, she has not denied it.”
This deed bore date April 12, 1910, and purported to be signed by both defendants in the presence of James W. Looker and Emma Looker, and to have been acknowledged on April 13, 1910, by both defendants before Joseph D. Bitler, a justice of the peace of Clare county.
Joseph D. Bitler, the justice of the peace, testified that he signed the certificate of acknowledgment, but that Lousina Looker did not personally appear before
“Mr. Bitler, please acknowledge this deed signed as my free act and deed.”
He testified that the signatures on the letter and deed were the same. James W. Looker testified that he and his wife signed the deeds as witnesses at the request of his brother, William R. Looker, who brought the deed to them. Witness could not testify whether the grantors’ names were signed to the deed or not at the time. It perhaps should be stated that the defendant Lousina Looker further testified that the land in question was the home of herself and husband, and had been for 28 years; that she knew very little about her husband’s business; that she never received any consideration for the sale or mortgaging of the property; that her husband’s transactions were so numerous and varied that she did not undertake to keep track of them; and that when her husband brought in papers for her to sign, she always signed them.
The circuit judge, who heard the evidence and saw the witnesses, found for the complainant. In an opinion filed in the case he said:
“The sole question raised in the case was whether the instrument was signed by defendant Lousina Looker. There can be no doubt but that the complainant is right in his contention, and that the instrument was duly signed by both defendants as the testimony shows. * * * While the acknowledgment of this deed by the defendant Lousina Looker was not regular, the original deed was introduced in evidence, and the controversies being between parties to that deed, and no question arising under the recording laws, acknowledgment by her was not so important as to make any difference with the rights of complainant. The question raised as to the rights of the wife where land is held by entireties was fully answered by the authorities relied upon by complainant’s solicitor, especially People’s Building & Loan Ass’n v. Billing, 104 Mich. 186 (62 N. W. 373)
It is contended by appellant’s counsel, in his brief, that the circuit judge erred in his conclusions, and that the real questions are whether:
(1) Mrs. Looker actually executed the deed intelligently, without accident, mistake, or fraud, and without such negligence on her part as might under some circumstances estop her from denying it; (2) whether there was a delivery on her part; (3) whether there was consideration running to her; (4) whether in an estate by the entireties one spouse can convey a fee simple and the other spouse create an incumbrance.
Upon the first and second questions urged by appellant’s counsel, we think it should be held that where, as in this case, a wife signs an instrument at the request of her husband, and she testifies that she did so habitually and always, and the husband is thereby enabled to borrow money upon such instrument, the lender relying upon the paper being what it purports to be upon its face, the wife should be held to be estopped from denying the validity of such execution and delivery. Van Slyke v. Rooks, 181 Mich. 88 (147 N. W. 579). The maxim that when one of two innocent persons must suffer by the acts of a third, the loss must be borne by the person who enables such third person to occasion it should apply with full force here, even if the facts were as testified to by Mrs. Looker, of which we have grave doubts. The cases cited by appellant’s counsel are readily distinguished from the instant case.
Upon the third question, being that of consideration, it is only necessary to say that a wife’s conveyance of her property in payment of or security for her husband’s debt is supported by a sufficient consideration. Le May v. Wickert, 98 Mich. 628 (57 N.
As to the fourth question, in the case cited by the learned circuit judge (People’s Building & Loan Ass’n v. Billing, supra), it was held that a mortgage executed by husband and wife upon land owned by them as tenants in the entirety, to secure a loan made to the husband alone, was valid.
It having been held that the effect of the deed was that of a mortgage, it-necessarily was a mortgage as to both defendants, and we see no force in the claim of counsel that it was a deed as to one defendant and a mortgage as to the other.
We find no error in the record, and the decree of the court below is affirmed, with costs to complainant.