231 N.W. 59 | Mich. | 1930
On December 2, 1916, Edgar S. Miller executed and delivered to John M. Hendryx and wife a writing in form a short form warranty deed but in fact a mortgage of a parcel of land in Mecosta county. The paper was recorded as a deed. On May 8, 1920, Miller conveyed this land by full warranty deed to plaintiff, his former wife. On November 1, 1920, Miller having paid the debt secured by the conveyance first mentioned, Hendryx and wife executed and delivered to Edgar S. Miller as grantee a deed of reconveyance of the parcel. On May 3, 1922, Miller married Katherine C. Smith, now defendant Katherine C. Morlock. Miller died November 8, 1924. A few days before his death the deed of November 1, 1920, by Hendryx and wife to Miller was recorded, but, before recording, the name of the grantee was changed from Edgar S. Miller to "Edgar S. Miller and Katherine C. Miller, jointly and to the survivor of either of them of Chippewa Lake, Michigan." Hendryx and wife had nothing to do with such change. The deed from Miller to plaintiff was recorded December 21, 1926. Later Miller's widow, Katherine C. Miller, married defendant Jacob Morlock, and they conveyed the parcel to a third party, taking back a deed to themselves as husband and wife, which deeds are of record.
Plaintiff filed this bill to remove cloud from title, to make record title in her, and for other relief. She *98 had previously attempted this by action in ejectment, and had failed, not on the merits, but on the ground that ejectment was not adequate remedy. From decree entered, plaintiff has appealed.
Plaintiff has made under her bill a case in equity. There is no former adjudication. We need not discuss the effect of defendants' contending in the law-suit that there was not adequate remedy at law, and their contention in this equity suit that plaintiff has adequate remedy at law.
Testimony taken subject to objection and violating the opposite party rule (3 Comp. Laws 1915, § 12553) will be disregarded.
Plaintiff's deed must be accepted at face. There is no issue of fact upon which her withholding it from record has any bearing.
The conveyance to Hendryx and wife was a mortgage; this fact is so fully established that we will not discuss it further.
Plaintiff's title under her deed was perfect except for this mortgage. If the mortgage when paid had been discharged by proper writing of record, plaintiff's title would have been free. Hendryx and wife, under their mortgage, in form of deed, held legal title merely as security. 41 C. J. p. 315;Jordan v. Diltz,
Equitably, the reconveyance by Hendryx and wife is a discharge of mortgage. The effort of Miller and wife or either of them, by alteration or spoliation of the writing to convert it into a deed creating an estate by entireties, is fraud.
Defendants here do not hold in good faith. Deeds, intended as such, subsequent to plaintiff's deed, are *99 set aside. The conveyance by Hendryx and wife to Miller is restored to operate as a discharge of the mortgage. Plaintiff holds by title perfect as against defendants. She may have decree accordingly.
Reversed, with costs to plaintiff.
WIEST, C.J., and BUTZEL, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ., concurred.
