9 Mich. 465 | Mich. | 1862
Does the bill show such title or interest of the complainant in the mortgaged premises as entitles him to the relief asked? This is the only question presented by the demurrer.
As the facts stated in the bill are somewhat numerous and complicated, and a full abstract of the bill and exhibits will accompany the report, I do not deem it necessary to incorporate such abstract in the opinion, but, for the sake of brevity, shall proceed directly to the main question, the bearing of which will be fully rmderstood by reference to the bill.
The bill is essentially a bill for the redemption of certain lands, from the encumbrance of two mortgages (the prior one executed by William A. Howard, Rollin C.
So far, therefore, as the question raised by the demurrer is involved, the bill may be treated as a bill of redemption only.
If the complainant has shown no title or interest in the premises, he has shown no right to be protected by the redemption; and a court of equity will not lend its aid to enforce his right, as a volunteer, to pay off a mortgage on the lands of another, nor subrogate him to the rights of a mortgagee under a mortgage thus paid by him. But the interest required, as the basis of a right to redeem, need not be the fee subject to the mortgage, or the whole of the mortgagor’s original equity of redemption (except in some .cases of a statute redemption thus limited).
But whatever may be the title or interest claimed, it •must, in some way, appear on the face of the bill, and the nature and extent of it must be set forth: and, if the bill be not brought by ■ the mortgagor, it must be shown how complainant became entitled to it; unless the •bill distinctly sets up some special matter of estoppel, and expressly relies upon it as such.
When a bill for redemption is brought by the mortgagor himself, both parties claim under the same title: the mortgagee, by the acceptance of the mortgage and his claim under it, and all claiming under him, by the fact of such claim, conclusively admit an interest in the mortgagor sufficient for redemption; as their own claim under the mortgage rests upon such interest, which they cannot claim and deny at the same time (though they might, perhaps, under special circumstances show that interest to be less than the mortgagor claimed to convey by the mortgage). But if the bill be brought by any other person than the mortgagor, the title or interest claimed must be derived, immediately or remotely, through the mort. -gagor, or in some way spring out of his general equity of redemption; and the principles applicable to the statement of a derivative title or interest in pleading must apply to. the statement of such title or interest in the bill.
It is a well settled rule of pleading at common law, ■that a party claiming under a derivative title must show
In such cases, therefore, at least when the question'*' arises upon demurrer, any ambiguity or uncertainty of lan.guage should be construed most strongly against the complainant.
To apply these principles to the present case: the only statement on the face of the- bill of complainant’s title or -interest in the mortgaged premises, and that upon which •the bill bases his right to redeem, is in these words: '“And your orator further shows that afterwards” [after the execution of the two mortgages] “on the first day of November, 1856, your orator became and was interested ■in said real estate by contract, and then and there and for a long time thereafter was, and continued to be in actual possession of all of said premises, and that while your orator was so in possession of said premises, claiming and holding the same,” Reed filed his bill, &e.
It would be difficult to contrive a more indefinite statement of an interest than this, or one which would give less information of its nature to the defendants or the court. So far from describing the contract, or stating its purport or substance, so as to allow the court to judge whether it created any interest in the land, ’ it does not -even mention the parties by or between whom it was made, nor a single stipulation it contained. It may have ■been a contract between two parties or ten. If it gave •comjfiainant an interest in the land, it may have been a joint interest with several others who wouldjbe necessary parties to this bill. The contract may have been upon a
But uncertain as the interest of the complainant is, this, mode of stating it raises a clear, if not a conclusive inference that he had not and did not claim to have the fee,
It is therefore, I think, very clear that the matter of the complainant’s interest in the lands, is not, so far as it depends upon the allegation alluded to, well pleaded, and that, upon demurrer, the bill must be treated as if this allegation had been entirely left out. The demurrer admits only facts well pleaded, and must therefore be held to be well taken, unless there be something in the exhibits (for there is not a word in the bill) to supply the defect.
But it is insisted by the counsel for the complainant, that this defect is supplied by the recitals in the exhibits B and C referred to, and prayed to be made a part of the bill, both dated December 28, 185V, the former being, in the language of the bill, a “covenant or declaration of trust” made by complainant to defendant, Warner, and the latter an instrument executed by Reed, by which he refers and assents to the former, and agrees, on certain conditions, to extend the time of payment of his mortgage.
It is evident that neither of these instruments, nor both combined, could have been intended as the contract by means of which he “became interested in said real estate by contract;” because, 1st. they were executed more than
But admitting the bill to have properly averred an interest in the land, and that such interest had been admitted by Warner, Austin or Reed, the language of the instrument would hardly prove such interest or such admission. It merely recites by way of inducement, that “whereas the premises so mortgaged are now claimed by Simeon Smith subject to and after the execution of a certain trust deed” (probably meaning the execution of the trusts) “made by cne William Warner and his wife, to one Thomas B. Rose as trustee” (to which reference is made generally as of record in the county of Sanilac, and then proceeds) “and it being provided in said trust deed to said Rose, that said Simeon Smith and his agents might manage and operate said real estate and the steam saw mill thereon with the fixtures and appurtenances thereto belonging, for the purpose amongst other things, of paying the debt secured by the said” [Austin] “mortgage hereinbefore referred ■to, and as a further security to that end, this instrument is made.”
This recital shows only that complainant claimed an interest, (which by the way is left quite as much in the dark as the aforesaid interest by contract), but the other party admits none; the language would seem to have been thus purposely guarded to avoid an admission, and there is nothing in the instrument, even less if possible than in the bill, to show whether the claim was well or ill founded.
The reference to this trust deed to Rose, so far from showing any interest of complainant, only tends to render
Was it this trust deed to Rose by means of which complainant “became interested in said real estate by contract ?” If allowed to grope our way by conjecture where all is uncertain, there is much to render this theory probable ; yet it would but faintly illuminate the mist in which that “interest,” and I may say the title generally, seems to be enveloped by the bill and the exhibits. The only terms of the trust deed which are intimated — and the statement from its context has somewhat the semblance of having been inserted as explanatory of the nature of the complainant’s “ claim” — show merely that complain
Does the reference to exhibit C, asked to be taken as a part of the bill, with all its averments, give any greater aid to the bill, or supjdy the want of a proper averment of title?
This instrument was executed by Reed on the same day as exhibit B, and by way of inducement recites that “whereas, the party of the second part,” [the complainant] “ has become the purchaser of the mortgaged premises and then proceeds to describe the mortgages, the trust instrument to Warn'er, and Reed’s assent to the same, and then sets forth Reed’s agreement to give time of payment of his mortgage on condition that complainant pays the Austin mortgage according to the terms of' the trust instrument to Warner, and that he pay Reed’s mortgage in the manner and by the instalments mentioned.
Supposing it to have been competent for the complainant, by reference, to make a document a part of his bill, in such manner as to give its language the effect of a direct allegation in the bill itself, and to suj>ply the entire absence of any allegation in the bill upon the same point, without showing the effect he intended to claim for it, or the use intended to be made of it, yet giving to this paper the same effect as if its language wTere inserted verbatim in the bill — and this is the greatest effect that can be claimed for it — how will the case then stand? To say nothing of its form as mere recital, the greatest effect it could have would be an averment that he had become the purchaser (the most natural interpretation of which
There is still another difficulty to be noticed. This, exhibit C was executed by Reed alone; and however Reed may be affected by it, or Warner, as his trustee, by receiving money under it, I can see no ground on which it could affect Austin, either as matter of pleading or as-evidence, unless it operated to transfer to complainant an interest in the mortgaged premises, in which case, if this-interest were properly alleged in the bill, it might show a basis for complainant’s right to redeem. But complainant does not claim to derive his interest in the land by or through this instrument, nor does it purport to create or-convey an interest, nor is it referred to in the bill for-any such purpose. Both the bill and the exhibit go upon the assumption that he was already interested by some
The demurrer was, I think, well taken. But as, from other parts of the bill, it seems quite probable complainant may have strong equities, and upon a bill properly drawn might be able to show a sufficient interest in the land, he should be allowed to amend on payment of costs; and he should be allowed to add other parties, should he deem it essential; and the cause should be remitted to the Circuit Court in Chancery for further proceedings.
It not unfrequently happens, that the ablest counsel may be driven by some emergency in the affairs of his client, or some real or supposed necessity for immediate action, to prepare a bill without sufficient opportunity for investigation of the facts or the law, and without access to all the documents which may be material to the case. The defects in the present bill lead to the supposition that such may1 have been the case with the able counsel who •is understood to have prepared it.