37 Mich. 274 | Mich. | 1877
A bill in chancery was filed to foreclose a mortgage given by defendants Sarah Elanigan and Patrick Flanigan to complainants, executors of the estate of Jeremiah Scanlon, deceased. The National Fire Insurance Company was made a party defendant as a subsequent encumbrancer, and the entire controversy in this case grows out of this last allegation.
John Heffron and Edward Keidy as executors and by virtue of a power of sale contained in the last will and testament of Jeremiah Scanlon, deceased, sold at public auction the title and interest of said deceased in and to certain real estate in the city of Detroit. Sarah Flanigan became the purchaser thereof at such sale, and on the 16th day of August, 1873, Heffron and Beidy, as such executors, executed a deed of the premises to Mrs. Flanigan, she at the same time mortgaging the premises to them to secure a part of the purchase price. The property was sold for twenty-three
The following day, August 20, Mr. Beidy and Mrs. .Flanigan met according to appointment at the office of Mr. Wesson, when a mortgage was executed by Mrs. Flanigan to the National Fire Insurance Company to secure the payment pf seven thousand dollars. Mr. Beidy was one of the subscribing witnesses to this mortgage, but says he supposed it related to the negotiation of certain securities which Mrs. Flanigan claimed to hold against the Michigan Southern Bailroad Company for property sold the company in Cleveland. Mr. Wesson then paid over to Mr. Beidy at Mrs. Flanigan’s request the seven thousand dollars by an eastern draft upon the insurance company, and Mr. Beidy handed to Mrs. Flanigan the executors’ deed. These several acts occurred at Mr. Wesson’s office at the same time and were parts of one entire transaction. The executors’ deed to Mrs. Flanigan and the mortgage from her to the insurance company, were then sent by Mr. Wesson to the register’s office and duly recorded. It • is not claimed that either Mr. Wesson or the insurance company had any notice, other than such as the record would afford, of the mortgage from Mrs. Flanigan to the executors, at the time the seven thou
Until the delivery of the deed to Mrs. Flanigan she had no title to the property. She was but a mere stranger to it, and although for certain purposes the delivery might relate back to the sale and vest the title in her as of that date, yet this fiction cannot be so applied as to work an injury to innocent parties.
Had Mr. Wesson made an examination of the records in the office of the register of deeds upon the 20th day of August, with the knowledge that the deed to Mrs. Flanigan had on that day just been delivered, he would not have searched for conveyances or incumbrances made by her previous to that date. At such a time his object would have been to ascertain whether her grantors had a good title or right to convey, and whether they had in any way encumbered their title. He would examine the records for the purpose of ascertaining whether any one, through whom the title was derived, had, after acquiring their title, conveyed or encumbered the same, but he would be under no obligation to examine the records in order to ascertain whether strangers to the title had without right or power attempted to alien