| Mich. | May 14, 1867
Action was brought by Mrs. Sly to recover dower in lands conveyed ,by her husband, during the marriage, to his sons, by deed, in which she did not join. The land, at the time of the sale, was covered by a partly paid purchase money mortgage, the remainder of which was afterwards paid by the sons, who conveyed by warranty deed to Newton, and who subsequently took an assignment of the mortgage, after it had been fully paid. The chief contest arose out of a claim on the part of the defendant below to have deducted from the value of the premises at the time of Sly’s conveyance, not only so much of the mortgage as had not then been paid, but also the sums previously paid; or, in other words, the entire mortgage money and interest originally secured.
The claim to this full deduction was based on a showing that Sly’s sons were the real purchasers of the land originally, and not only paid the money which was required for the advanced instalment, but ’also agreed to pay, and did pay, the sums falling due on the mortgage, and had the land conveyed to their father in trust for their own benefit, and upon the understanding that he would deed to such of them as they might require; and that the conveyance which he finally made was in pursuance of this arrangement.
We think this course was proper. The whole arrangement between Sly and his sons was verbal. Our statute has abolished the resulting trusts which formerly arose in favor of parties actually paying the consideration for lands conveyed to others. Now, if the conveyance to the grantee is made with the consent of the one who pays for the land, the latter can claim no interest in the estate. — Comp. L. § 2637. Nor can an express trust in lands be created by parol. — Comp. L. §3177-8. Inasmuch as these verbal agreements were void, the conveyance from Silas Sly was the first thing which gave his grantees any interest in the land. Of course, they can not claim that previous payments were made to protect their title. The statute secures to them the advantage of all payments made thereafter. — Snyder v. Snyder, 6 Mich. 470. But the court below allowed these, and gave them all they were entitled to demand.
It was also urged that as the purchase money mortgage was valid against the right of dower, it precludes any possessory action to recover it. We have frequently decided that a mortgagee has no possessory right until foreclosure. — Baker v. Pierson, 5 Mich. 456; Crippen v. Morrison, 13 Id. 23; Ladue v. D. & M. R. R. Co. 13 Id. 380; Caruthers v. Humphrey, 12 Id. 270. In the first case cited, a mortgagee receiving possession from the mortgagor, pending a suit for the foreclosure of a prior mortgage, to which he was not made a party defendant, was held not to be entitled to any rights as mortgagee in possession, and was treated as standing in the shoes of a mortgagor. Mrs. Sly’s right of dower is embraced in the equity of redemption of the mortgage, and no agreement, to which she is not a party, can give a right of possession under that instrument as against her possessory claims.
The judgment must be affirmed, with costs.