58 Mich. 393 | Mich. | 1885
The bill of complaint was filed in this case to foreclose a mortgage executed by the defendants John Paxton and Sarah S. Paxton to secure the payment of a promissory note given by John Paxton to Charles W. Hammond for borrowed money. The note and mortgage bear date the 15th day of April, 1873, and the mortgage was recorded on the 3d day of May, 1873, and covered the undivided one-half of two parcels of land in Monroe county, Michigan: one parcel known as the Jefferson S. Bond farm, containing 49-^ acres lying in the town of Raísinville ; the other,
The reasoning by counsel for defendant Toll is that the order dismissing the bill of complaint did not have the effect of a decree dismissing the bill; that a bill of complaint can only be dismissed out of court by a decree of the court actually pronounced and entered, and that the interlocutory order was ineffectual for that purpose, and therefore the suit was pending at the time of the execution of the mortgage, and the lis pendens was notice to the mortgagee of the facts claimed in the bill of complaint that these lands were partnership property. Or, if he is mistaken in this position, he claims
It is claimed by the complainant in the present suit brought to foreclose the mortgage, that the notice of lis pendens filed on March 2é, 1873, at the time of filing the first bill of complaint, was insufficient for two reasons: 1st. In not being signed by .the complainant or his solicitors; and 2d. In not containing a description of lands to be affected thereby.
The statute provides that to render the filing of a hill constractive notice to a purchaser of any real estate, the complainant shall file for record a notice of the pendency of such suit in chancery, setting forth the title of the cause and the general object thereof, together with a description of the lands to be affected thereby. How. Stat. § 6619. The view we take of the consequences arising from the disposition of the first suit renders it unnecessary to pass upon the alleged defects in the notice filed; but, assuming it to be sufficient, we shall proceed to consider its office and effect as constructive notice in this case.
The decree dismissing the bill of complaint for want of prosecution was irregularly entered. A decree of this kind can only be made by the Court. It follows that the first suit was pending at the time the mortgage was executed. But the question remains, how far the pendency of that suit is
The other claim of the defendant is that the mortgagor had actual notice of the fact that the real estate was partnership property, and therefore the equity of the creditors is superior to his. The evidence relied upon to prove actual notice was that the firm quarried and used the sand upon the lands first above described, and were when the first bill of •complaint was filed in the actual possession thereof, and such possession continued down to the time of the execution of
It is common knowledge that partnerships are found in the possession and use of real estate, of which they either have no title, or hold the same as tenants-in-common, and that such real estate forms no part of the assets of such firms. Twto or more persons may be the owners of a stone quarry, and hold undivided interests in the title thereof, and there is nothing inconsistent with such ownership for these persons to form a copartnership in quarrying and marketing the stone without putting the real estate'into the partnership at all. Unless there was something in the record which indicated that the land was held by the firm as partnership property, or that the property was purchased jointly with partnership funds, a purchaser in good faith for value ought to be protected. In this case there was nothing upon the records in the office of the register of deeds to indicate or suggest that the land belonged to the partnership, and the record before us, although showing that the land was conveyed to defendants jointly, does not show that the purchase was made with partnership funds. What was said in Reynolds v. Ruckman 35 Mich. 80, is applicable to this case, and decisive of the point in dispute.
The decree of the circuit court is reversed with costs, and the usual decree must be entered for the foreclosure of the mortgage, as prayed for in the bill.