230 N.W. 933 | Mich. | 1930
The defendants James F. McBride and his wife, Cora, were the owners of a lot fronting on Theodore street in Detroit. June 7, 1926, they mortgaged this property to the plaintiff, John McBride, for $5,100; but because of an error in describing the property the mortgage as drafted did not include the front 20 feet of the lot. None of the parties were aware of this mistake. In September following, the defendant James F. McBride being indebted to the defendant Lawrence B. Snyder on *602 certain notes, an instrument in the form of a warranty deed correctly describing this lot was given by James F. McBride and wife to Mr. and Mrs. Snyder. This deed, which in fact and in law was a mortgage, contained a covenant that "the abovegranted premises * * * are free from all encumbrances whatever except a mortgage in the amount of $5,100 dated June 7, 1926, held by John McBride." Mr. Snyder admits that when he took this security he understood that the mortgage held by the plaintiff was a lien upon the whole of this lot. On June 8, 1928, incident to a settlement of matters pending between James F. McBride and Snyder, including the discontinuance of a chancery suit instituted by the latter against the former, Mr. and Mrs. James F. McBride gave a quitclaim deed of their interest in this lot to Mr. and Mrs. Snyder. A settlement agreement executed between these parties on the same date referred to the earlier deed (mortgage) as having transferred the lot "subject to the then existing mortgages encumbering said property."
The plaintiff herein foreclosed his mortgage and purchased the property at the sale. Before the period of redemption expired he discovered that neither this mortgage nor the deed executed incident to the foreclosure sale covered the front 20 feet of the lot. It soon developed that the defendants Snyder claimed title to this front 20 feet by reason of the quitclaim deed they had received from Mr. and Mrs. James F. McBride; and they denied that this portion of the lot was subject to plaintiff's mortgage. Thereupon Mr. John McBride filed the bill of complaint in the instant case, alleging that the defendants Snyder are not innocent purchasers of this property for a valuable consideration, praying that the description in his mortgage be corrected on *603 the ground of mutual mistake, that the interest of Mr. and Mrs. Snyder in this property be made subject to plaintiff's mortgage, that foreclosure be decreed, and upon sale the amount received be first used in paying the amount due plaintiff and any residue be turned over to the defendants Synder. The allegations of the bill and the right to the relief sought are admitted by Mr. and Mrs. James F. McBride; but the Snyders claim to be innocent holders of title to the front 20 feet of the lot and for value; and as to them plaintiff's bill of complaint was dismissed. He has appealed.
After having given the record detailed consideration, we feel constrained to hold that the issue here for review was erroneously decided in the lower court. Several months before taking the quitclaim, Mr. Snyder learned from the public records that plaintiff's mortgage described only the rear 88 feet of this lot; but from the recital in the deed which the Snyders had previously taken and recorded it fairly appeared that plaintiff's mortgage covered the "granted premises" which was the whole lot. In other words, notice of plaintiff's mortgage as an incumbrance covering the entire property appeared in Snyder's chain of title and was notice to him of plaintiff's lien thereon. Baker v. Mather,
WIEST, C.J., and BUTZEL, CLARK, McDONALD, POTTER, SHARPE and FEAD, JJ., concurred. *606