178 Mich. 100 | Mich. | 1913
The bill of complaint is filed in this
“The quitclaim deed of December 9, 1881, * * * conveyed no present title, because Mrs. Ernst had no title that she could convey by her sole act. Neither could she create an incumbrance in this way. Vinton v. Beamer, 55 Mich. 559 [22 N. W. 40]; In re Appeal of Lewis, 85 Mich. 340 [48 N. W. 580, 24 Am. St. Rep. 94]; Naylor v. Minock, 96 Mich. 182 [55 N. W. 664, 35 Am. St. Rep. 595].”
He made the following supplementary findings of facts, which an examination of this record shows are fully warranted by the evidence:
*102 “First, that the quitclaim deed from Catherine L. Ernst to Peter Ernst, executed in December, 1881, was intended by the parties as a conveyance of the interest Catherine L. Ernst had in the land herein described to Peter Ernst; second, at the time of the execution of the quitclaim deed described in the first paragraph of this finding, Peter Ernst paid Catherine L. Ernst the sum of $175, as a consideration for the interest which they supposed the deed conveyed, which sum has not been repaid to Peter Ernst.”
The circuit judge held the deed void, and made a decree granting the prayer of complainant’s bill. Counsel for defendant and cross-complainant concede in this court that the deed is void, but contend that an equitable lien for the amount paid by the defendant to the complainant should be decreed, and, in the event that this cannot be done, that the payment of this sum by the complainant to the defendant be made a condition precedent to granting relief to the complainant.
The quitclaim deed did not convey the land itself, but merely the interest which the grantor had therein, and the purchaser under this deed did not obtain any better title than that held by the grantor. Hughes v. Jordan, 118 Mich. 27 (76 N. W. 134). And it necessarily follows that a subsequently acquired title did not pass to the grantee. Frost v. Missionary Society, 56 Mich. 62 (22 N. W. 189); Fay v. Wood, 65 Mich. 390 (32 N. W. 614); Gadsby v. Monroe, 115 Mich. 282 (73 N. W. 367).
The complainant, at the time she gave the deed, had no right, title, or interest in the land which she could, by her sole act, incumber in any way, and to hold that the defendant obtained an equitable lien at the time of taking the deed would, in effect, be giving him a mortgage, which it is clear she could not do. He does not claim that he was defrauded or deceived, and, according to his own version, he knew the kind of deed he received and was willing to ac
The complainant, however, has come into a court of equity for relief, and under the familiar axiom that he who seeks equity must do equity, it does seem that relief should not be granted complainant without requiring her to repay what has been paid her. We are satisfied that she received the $175, and has not repaid the sum to the defendant, as found by the circuit judge. The relief she prays for. should be made conditional upon repayment by her to the defendant of the $175 and interest thereon at the legal rate from the time of the payment.
The decree of the court below will be modified accordingly, with costs to the defendant.