93 Mich. 345 | Mich. | 1892
The bill in this case was filed for the purpose of having a mortgage declared paid, canceled, and discharged.
Defendant was a former owner of the land upon which the mortgage was given. He sold the land to one John Herman for $3,000. Eight hundred dollars was paid in cash, $200 secured by a chattel mortgage, and $2,000 secured by a purchase-money mortgage upon the land, which is the mortgage complainant now seeks to have canceled. Herman obtained a loan of $1,000 from complainant, which he agreed to pay upon this mortgage, and gave her a second mortgage upon the same property as security. Herman obtained a draft for $1,000 which he sent by mail to defendant, who applied $200 in payment of the chattel mortgage and $800-upon the real-estate mortgage. Herman became unable to pay, and subsequently deeded the land to complainant. In this deed the Noble mortgage was excepted from the covenant-of warranty. Complainant, her husband and son, were present when Herman wrote the letter containing the draft, and all testified that it directed the defendant to apply it upon
If Herman directed the application of the money upon the mortgage in question, then complainant is entitled to relief; and this is the material question of fact in the case. The circuit judge made a written finding, in which he said he was convinced that the letter inclosing the draft directed the application of the entire amount upon the mortgage, but that afterwards Herman wrote another letter, directing the application as defendant claims to have made it, and that this second letter was received before the application was made.
We find no competent or reliable evidence to sustain the finding as to this second letter. The defendant and his wife both testify that the instructions were in the letter containing the draft, and the defendant himself testifies that he received no other letter containing such directions. The only evidence of this fact I find in the record is in the testimony of a Mr. Spencer, who drew the deed from Herman to complainant, and who testified that Herman told him that he at first directed the payment of the entire amount on the farm mortgage, but that some time afterwards he wrote defendant another letter, requesting him to apply $200 on the chattel mortgage. This testimony, besides being incompetent, is deserving of little credit, in view of the other testimony referred to. No letter from Herman to defendant was produced, and the letter inclosing the draft was shown to have been lost. The hearing was in open court, where the judge saw the witnesses. We should therefore hesitate to set aside the finding of the judge, except in a clear case. But a careful examination of the record has convinced us that the finding of the judge in this respect is incorrect, and that the
It is contended by tbe defendant tbat tbe complainant is estopped to deny the amount of tbe mortgage by her deed from Herman. We see no room for tbe application of tbe doctrine of estoppel. Tbe $200 was not deducted from tbe purchase price of tbe deed, and no agreement was made between tbe complainant and defendant which affected tbe rights of either, or changed the situation of tbe parties. This $200 was, in fact, paid upon tbe mortgage, and she has done nothing to waive tbe application as directed.
Tbe decree will be reversed, with tbe costs of both courts, and decree entered here for complainant.
