10 Mich. 526 | Mich. | 1862
The bill is to restrain the foreclosure of a mortgage at law, and to have the mortgage cancelled and discharged of record.
The bill states the'mortgage was paid by John Brown, the husband of Mrs. Brown, with means furnished him for that purpose by Mrs. Brown, on his undertaking to pay the mortgage and have it discharged of record. This we think is clearly proved by the testimony in the case. It further states that Brown, on paying Stockwell, instead of having the mortgage discharged procured an assignment of it to Dillingham, to defraud the heirs- — -children by a former husband of Mrs. Brown, who had in the mean time died. The answer states that the mortgage was purchased by BroAvn of Stockwell, and assigned by him at Brown’s request to Dillingham to secure a debt Brown was owing him. Dillingham in his testimony says it was assigned to him at Brown’s request, to secure a debt of between $25 and $30 Brown was owing him, and to secure him for any further indebtedness that might accrue to him if he foreclosed the mortgage. There is no pretence he paid Stockwell anything, or that he furnished Brown with any jaart of what he paid Stockwell. We know of no principle in equity giving him, in such circumstances, rights superior to what he would have had had Stockwell assigned to Brown, and then Brown to him. As against Brown himself, the heirs of Mrs. Brown would have a clear right to have the mortgage cancelled; and what they would be entitled to against him, they would be entitled to against his assignee, or the assignee of such assignee. The assignee of a mortgage takes it subject to all equities existing between the parties to it. Not between the mortgagor and mortgagee only, but between the mortgagor and assignee of the mortgagee who has assigned it to another-When a mortgage is assigned, the assignee, for all beneficial purposes claimed under it by him, becomes a party to the mortgage, and stands in the place of the mortgagee; and
As to complainant’s interest in the mortgaged premises, and consequently his right to file the bill, it was argued that the guardian’s deed of the three undivided fourths belonging to the minor heirs was void for want of jurisdiction in the Probate Court granting the license to sell, as the petition for the license did not comply with the statute.
The statute provides that, in order to obtain a license to sell, the guardian shall present to the Probate Court of the county in which he was appointed guardian, a petition therefor, setting forth the condition of the estate of his ward, and the facts and circumstances on which the petition is founded, tending to show the necessity, or expediency of a sale. Comp. L. § 3099. The petition describes the land; states that about thirty acres of it were under improvement, and that the balance of it was wild and uncultivated and yielded no income to the minors. That it was necessary a portion of the proceeds of the land should be used to pay certain debts incurred in behalf of the minors, and that in the opinion of the petitioner it would be for their interest to have the land sold, and the proceeds after paying the debts put out at interest.
We think the petition complies with the requirements of the statute.
The decree dismissing the bill must be reversed, and a decree be entered for complainant in accordance with the prayer of the bill, with costs.
