84 Mich. 591 | Mich. | 1891
The bill in this case was filed to foreclose a mortgage executed by Francis H. Strong and Georgia A. Strong, his wife, to Israel Hall on November 10, 1866, to secure to the said Israel Hall the payment of the sum of SI,500 mentioned in a promissory note, of even date with the mortgage, with annual interest thereon.
The bill of complaint sets forth that on or about February 23, 1882, Israel Hall assigned said mortgage to the complainant in this suit for the use and benefit of Zackra E. Strong and Olive May Strong, children of the said Georgia A. Strong, one of the mortgagors mentioned in said mortgage, together with the note and all moneys then due and the interest that might thereafter grow due on said note and mortgage, which assignment
The bill further states that on June 18, 1866, the said Francis H. Strong, one of the parties of the first part in the said indenture of mortgage, and Joseph T. Strong, Chester W. Strong, and Gertrude J. Cole were the owners in fee and tenants in common of the said premises, and on the date last mentioned Joseph T. Strong and his wife, Chester W. Strong, and Gertrude J. Cole, for the consideration of 81,000, executed and delivered to Francis H. Strong a certain quitclaim deed, thereby granting and selling unto the said Francis H. Strong all their right, title, and interest in and to the said premises, to have and to hold the said premises with the appurtenances unto the said Francis H. -Strong, the party of the second part in said deed mentioned, during his natural life-time, and his heirs and assigns of his heirs, forever, but not to be conveyed during the life-time of the said Francis H. Strong; that this deed was duly acknowledged on June 18, 1866, by the grantors, and was recorded on July 2, 1866, in the office of the register of deeds of said county of Lenawee.
The complainant further states that the said indenture 'of mortgage before mentioned, executed by the said Francis H. Strong and Georgia A. Strong, his wife, to the said Israel Rail, was given upon and intended to cover all the right, title, and interest of the said Francis H. Strong and Georgia A. Strong in and to the said premises described therein; that said Zaekra E. and Olive May Strong, in the said assignment of mortgage mentioned, are the sole and only issue of the said Erancis R. Strong and Georgia A. Strong; that both are living, and are under the age of 21; that about January 1, 1878, said Francis H. Strong left and abandoned his children withr
The complainant further sets out that this mortgage so assigned to him contained no power of sale, as required by the laws of the State, to authorize its foreclosure by advertisement, and that the complainant, being entirely mistaken and misled by ignorance of this fact, on May 20, 1882, commenced proceedings to foreclose the mortgage by advertisement, prosecuted the same to sale, and became the purchaser thereat, and received the sheriff's deed therefor; that the deed so received was acknowledged on August 28, 1882, and recorded on August 29 in the office of the register of deeds of Lenawee county; and that he supposed that the proceedings to foreclose said mortgage by advertisement were regular, valid, and binding in law. Complainant also states that on December 7,' 1883, said Georgia A. Strong, by the name of Georgia A. Hayward (she having in the mean time married the complainant), in order to protect her children as the beneficiaries under said mortgage, executed a quitclaim deed of the premises to the complainant in trust for the use and benefit of said ' children; that said deed was duly acknowledged, and was afterwards recorded on November 14, 1884, in the office of the register of deeds of Lenawee county. The bill also sets out that previous to the execution of said deed by Georgia A. Hayward she had
Complainant further states that the mortgaged premises had not been redeemed from the sale, and he, still being mistaken and utterly ignorant of the fact that the mortgage contained no power of sale, and honestly believing the foreclosure proceedings valid, brought ejectment to obtain possession of the land in the circuit court for the county ■of Lenawee ■ against the defendants Amos A. Kinney and Andrew Church and Charles Church, who were then in the possession of the premises, holding the same adversely to the complainant under claim of title; that issue was framed in said suit, and recovery had in favor of the plaintiff therein; that, before the time fixed by the statute had expired, a new trial of the cause was obtained by the defendants, and he, having then discovered the fact that the mortgage did not contain a power .of sale, ordered the ejectment suit to be discontinued; that the court refused to do so, for the reason that the beneficiaries of the mortgage appeared by another attorney, and asked leave to prosecute the suit, and that the suit resulted in a verdict and judgment for the complainant; that for some season, which the complainant does not explain, the suit was finally discontinued before the commencement of this suit to foreclose the mortgage
Complainant further states that Francis H. Strong, one of the mortgagors, is not a resident of this State, and has not been for 11 years last past, and that he is credibly informed, believes, and charges that the said Strong js financially irresponsible, and ■ has been ever since said note became due, and that the amount due. to the complainant upon said note and mortgage, as trustee of said minor children, will be wholly lost as to said children unless the same is realized by the sale of the mortgaged premises by foreclosure; that the note which was delivered at the time the mortgage was executed was payable on November 10, 1869, and that there is now due and unpaid upon said note and mortgage the sum of $3,860, and that no proceedings at law have been had to recover the debt, or any part thereof, except as before stated.
Complainant further states that from an examination of the records of deeds and mortgages in the office of the register of deeds in the county of Lenawee it appears that Amos A. Kinney and Lucinda Kinney have, or claim to have, rights and interests in the premises described in said indenture of mortgage, or in some part or parts thereof, as subsequent purchasers, incumbrancers, or otherwise. The bill prays for a foreclosure of the mortgage in the usual form.
The defendants Amos A. Kinney and Lucinda Kinney demurred to the bill for want of equity, and for the reason that the bill had not been exhibited within 15
They aver that the defendant Amos A. Kinney has acquired all the right, title, and interest of the said Francis H. Strong under and by virtue of a sheriff’s sale and deed under a judgment and execution against said F’rancis in a suit in the circuit court for the county of Lenawee, and also several tax titles under deeds made by the Auditor General of said State on sales of said premises, made pursuant to law, for delinquent taxes; and that the defendant Lucinda Kinney has also purchased the premises under a tax sale made by the Auditor General of the State for delinquent taxes, pursuant to law, and received a deed therefor. The answer is also coupled with a demurrer, based upon the ground that the bill was not filed within 15 years after the mortgage became due and payable, and that no payment had been made
The defendant Georgia A. Hayward answered, admitting the execution of the mortgage by herself and Francis H. Strong as charged in said bill of complaint, and the assignment thereof, and that no part of the mortgage has been paid, and that the sum stated in the bill was due as therein charged; and also admitting all other material facts charged in said bill.
Proofs were taken in open court before the Hon* Noah P. Loveridge, from which it appeared that Kalph P. Strong was at the time of his death the owner of the premises; that he died in the fall of 1864, leaving as his. heirs at law four children, namely, Joseph T., Francis H., Chester, and Gertrude Strong, who was married to a man by the name of Cole. It was also proven that the widow of Ralph P. Strong is dead. The" defendants Amos A. and Lucinda Kinney introduced in evidence several tax deeds of the premises, against the objection of the complainant’s solicitor, and also the proceedings under the attachment suit set up in his answer. The circuit, court entered a decree in favor of the complainant for the foreclosure and sale of the mortgaged premises.
Since, the decree of the court below, the decision in the case of McKisson v. Davenport, 83 Mich. 211, having been brought to the attention of the solicitors for the defendants Kinney, they waive the position taken by them that the statute referred to in that decision applies to the case under consideration.- But they insist, as do the solicitors for the complainant, that adverse claims and titles to land cannot be tried in a suit to foreclose a mortgage. The defendants’ solicitors also insist that under the general rules of equity the mortgage has become stale, and that the statute of limitations should be applied to it*
Defendants’ solicitors further claim that the clause in the deed of the heirs to Francis H. Strong, reading as follows: “But not to be conveyed during the life-time of the said Francis H. Strong,” — operated as a restraint upon the right of alienation of Francis H. Strong, and therefore he could not give a valid mortgage upon the three-fourths of the' premises conveyed to him by that deed, he only having a life-estate in three-fourths of the premises, and his right to convey being prohibited. These words, if effectual for any purpose, operate, and were evidently intended, as a condition subsequent. The deed created a life-estate merely in three-fourths of the premises, and the insertion of the words served to make that an express condition which at the common law was implied in every estate for life or years. 2 Bl. Comm. 153. Such a condition, however, defeats the estate to which it is annexed only at the election of him who has a right to enforce it. No one entitled to enforce 'the condition has sought to defeat the estate granted to Francis Strong, and until this is done the mortgagee has a right to enforce his security to the same extent as if the condition were not contained in the deed.
The defendant Amos A. Kinney claims as a subsequent purchaser under an execution sale, but this is subject to the mortgage of the complainant, and he was properly made a party defendant. The complainant failed to show that Lucinda M. Kinney had any interest in the premises which was subject to his mortgage. The record discloses that she had a tax title upon the premises, which, the complainant must have known, could not be litigated in
. The bill will be dismissed, with costs, as to her. The decree of the court will be affirmed, with costs, as to the other defendant, and no writ of assistance will be awarded to put Amos A. Kinney out of possession of the premises, which he claims to hold by a paramount title.
The note matured November 10, 1869.
This suit was commenced February 23, 1884, and discontinued April 29, 1889.
The bill was filed August 6. 1889.
He claimed under tax titles, as well as under the execution sale.