146 Mich. 575 | Mich. | 1906
(after stating the facts). A single question of fact was submitted to the jury, which was whether defendant had sufficient notice of the claim and rights of plaintiff. The case for defendant, appellant, is based upon- a single proposition, which is that no extension of time in which to remove the timber was given. This proposition is in turn based upon the contention that McKillop and his wife were, when the extension was given, tenants by entireties of the land, by operation of the deed of December 15, 1902, executed to retransfer the title which had been conveyed as security for repayment of the loan. The argument made is that the legal effect of the words used in the deed in question is to create an estate by entireties, which effect cannot be changed by evidence dehors the deed itself. Counsel for the appellant relies upon the authority of Jacobs v. Miller, 50 Mich. 119, and Morrill v. Morrill, 138 Mich. 112. In Jacobs v. Miller the action was ejectment. It appeared that the land in question was conveyed by a guardian’s deed, authorized by a decree in chancery, to. Leo E. Taufkirch and Margaret Taufkirch, his wife, their heirs and assigns. Subsequent to the death of said Margaret; the surviving
We are not required to consider what effect would be given to the deed in question here, if it had been made by persons appearing to own the title, for a valuable consideration, to persons neither of whom had any estate, legal or equitable, in the land, and without notice of plaintiff’s rights. McKillop owned the land when he conveyed it as security. Mrs. McKillop joined in the deed as wife, and not as owner. The instrument was a mortgage. Cowles v. Marble, 37 Mich. 158. The equity of redemption remaining in McKillop was essentially a legal estate in the land (Gorham v. Arnold, 22 Mich. 247; Hoffman v. Harrington, 33 Mich. 392; Batty v. Snook, 5 Mich. 231; Caruthers v. Humphrey, 12 Mich. 270; Hazeltine v. Granger, 44 Mich. 503; Wagar v. Stone, 36 Mich. 364), and could be conveyed only by some instrument in writing (Rawdon v. Dodge, 40 Mich. 697). The effect of the quitclaim deed of the mortgagees was to release the mortgage and to merge the title in McKillop. It appears,
The judgment is affirmed.