47 Mich. 545 | Mich. | 1882
This is a foreclosure case. The mortgage was given by Willis D. Sherwood to Charles R. Brown, upon an eighty acre lot of land, to secure the payment of a promissory note of $500, dated December 22,1869, and due in one year thereafter. Brown, assigned the securities to William D. Sherwood in 1876, and the latter assigned to complainant in May, 1877. This last assignment was for value, and complainant toot the papers in good faith, and in the belief that they were valid securities.
By arrangement between Brown and William D- Sherwood the south part of the eighty acre lot was released from the' mortgage, and it is only sought to enforce it now against the north half, the fee of which is owned by the defendant Cecilia I. Sherwood. She resists a foreclosure, claiming to have had a complete equitable defense to the mortgage when held by William! D. Sherwood, and that the defense holds equally good against any one claiming by assignment from him.
The equities of this defendant rest upon a supposed obligation on the part of William D. Sherwood to protect her against encumbrances on the land at the time she became owner of the fee, and also upon facts which are supposed to constitute a satisfaction of this mortgage at the time an assignment of the same was made by Brown.
The chain of conveyance to Cecilia of the land now held by her is as follows after that by Brown above mentioned:" Willis D. Sherwood to Helen D. Eastman, deed of warranty dated October 7, 1870; Helen D. Eastman to Cecilia I. ■Sherwood, deed with covenant against the grantor’s own ■•acts, dated April 7, 1871. There is evidence in the case to justify the belief that Willis D. Sherwood received the conveyance from Brown in the interest and for the benefit of William D. Sherwood, who is his father, and that in all the ■subsequent transactions he dealt with the land as his father ■directed. There was, however, no writing between them to show any trust, and the father would have been unable to enforce as against him any interest in the lands whatever, or in the proceeds of sales.
If William D. Sherwood had been the grantor of the lands instead of his son, he would have been under legal ■obligation to protect his grantee and her assigns against the ■encumbrances. But as we have seen he was not the grantor, and he was not in position to claim any interest in the lands, either legal or equitable. It is possible that defend
The assignment of the mortgage now in suit by Brown to William D. Sherwood was part of an ax’rangement under* which the lands described in it were released from the Taylor mox’tgage. This was brought aboxxt by William D. Sherwood making a considerable payment on the Taylor* mortgage, in coxxsideration of which Brown assigned his* mortgage and gave a note for a balance. It is claimed by the defendants that this was a satisfaction of the Browm mortgage, and that it was only appax’ently kept alive at the* time by assignment to William D. Shex*wood as a protection, against the Jordan mox-tgage. William D. Sherwood himself testifies that this was the case; and if he is believed, the subsequent transfer to complainant, if valid, was a fraud upon the defendants.
It is plain enough on the evidence, however, that the-, assignment of the moi’tgage by Brown to William D. Sherwood was understood and assented to by the defendaxxts and if the assignment had been brought about by the use-of his own means, or means to which the defendants had noeqxxitable claim, he might lawfully have dealt with the mortgage as freely as might any other purchaser. The evidence,, however’, shows that this was not the fact. The moneys-paid by Mm on the Taylor mortgage, whereby he was-enabled to obtain an assignment of the Brown mortgage, were obtained by means of a sale made by Willis D. Sherwood, October J, 1812, of twenty-seven acres of the south, half of this same eighty acre lot, to Helen D. Eastman. As the north half of the lot had been previously sold, and was then owned by the defendant Cecilia, and as this twenty-seven acres in the hands of Willis D. Sherwood was in equity chargeable with all the mortgages so far as was-necessary for the protection of the nox’th half, it follows that, the proceeds received from the twenty-seven acres, when applied in any way upon the mortgages or any of them,,
There is no evidence connecting either of the defendants •with the sale of the mortgage to complainant, and they are mot estopped by any act of theirs from setting up as against him the defense that it has been satisfied. Their consent "that it might be held by William D. Sherwood as a protection against the Jordan mortgage was not a consent to any •other use of it. It was long past due when complainant bought it, and he therefore took all risks.
The decree must be reversed with costs of both courts and the bill dismissed.