63 Mich. 209 | Mich. | 1886
This ease comes here on bill and demurrer. The bill was dismissed in the court below.
The facts, as stated in the bill of complaint, are substantially as follows:
August 7, 1837, Edward Mundy became the owner of the land in controversy in Ingham county, and received a patent from the United States for the same. The patent also included lands in Yan Burén county. The patent was soon after recorded in Yan Burén county, but was not recorded in Ingham county until July 31, 1877.
On the fifth day of July, 1837, Mundy conveyed the said lands by warranty deed to Clarkson Runyan. This deed was not recorded in Ingham county until July 31, 1877.
In April, 1851, Mundy died, leaving a will by which the title to all the lands of which he died seized was vested in fee in George Sedgwick, his executor.
June 17, 1871, Sedgwick deeded the land in controversy to Charles H. Shepard, the consideration being $500. Previous to this purchase by Shepard, he and Charles W. Butler and the complainant had entered into an agreement by which Shepard was to furnish $250, and have half the land. Complainant was to furnish the .other $250, and take half of the land, which he was to hold in trust for himself and Butler,
In pursuance of this agreement, Shepard, November 28, 1872, conveyed one-half of the land to complainant.
December 21, 1872, Shepard conveyed the undivided half remaining in him to John J. Bush.
June 3, 1875, Bush and complainant sold the land to defendant Smith for $2,400. Smith paid to each $1,200, and complainant paid to Butler his share of the profits of the joint venture upon one-half. Bush and complainant executed to defendant Smith a warranty deed, containing the usual covenants of such deeds.
At the time of these conveyances to Shepard, Bush, and complainant, they were each and all purchasers in good faith for value, and without any notice of the deed to Runyan. Bush and complainant had no notice of this deed until after their conveyance to Smith, the defendant; but Smith, before and at the time of his purchase from them, knew of the Runyan deed, and that the land belonged to parties who were not the grantors of Bush and Sparrow. He did not, however, inform them of this fact, but concealed the same from them.
Smith took possession of the land under his deed, and put one Gustavus Gostopher in possession thereof as his tenant.
In 1846, Clarkson Runyan died intestate, leaving certain heirs at law surviving him.
May 21, 1880, certain of these heirs, holding twenty-four twenty-fifths of the land, brought an action of ejectment against Smith and Gostopher in the United States circuit court for the Eastern district of Michigan, which resulted in a judgment in favor of said heirs for twenty-four twenty-fifths of the premises. The case was tried before the court without a jury. The presiding judge, Henry B. Brown, found the facts substantially as above stated, so far as they
February 23, 1884, Smith brought an action in the circuit court for the county of Ingham, against Bush and Sparrow, upon the covenants of seizin and for quiet enjoyment contained in the deed from them to him. Before the commencement by Smith of this suit, Sparrow tendered to him $1,200, and the interest thereon, being the amount paid by Smith to him.
When the Bush and. Sparrow deed was made to Smith, Bush was financially responsible, but has since become totally insolvent, and any judgment rendered in such suit in favor of Smith against Bush and Sparrow must be paid alone by Sparrow, who is responsible.
May 31, 1884, the bill of complaint was filed in this case, praying that said defendants, Bush and Smith, might answer to the matters alleged therein, and that the said Smith be perpetually enjoined from prosecuting his said suit as against the complainant, and for general relief.
Defendant Smith interposed a general demurrer to said bill.
The fact that the defendant Smith at the time of his purchase knew of the insufficiency or invalidity ot' complainant’s title is not an available defense to the action on the covenants, either at law or in equity. In that action the deed governs, and the grantor, in order to defeat the operation of the covenant, cannot, in the absence of fraud, establish by parol the grantee’s knowledge of an incumbrance upon the land conveyed, or a defect in or utter want of title, or by oral proof engraft upon the deed exceptions and reservations not therein mentioned. Rawle, Cov. (3d ed.) 128; Van Wagner
There is no perceptible fraud upon the part of Smith in this transaction. He paid $2,400 in cash down for the land, and Sparrow and Bush received it. It is difficult to see any object upon Smith’s part to defraud them, or either of them. He can only recover back what he parted with, and 7 per cent, interest upon it. What he was to gain by the transaction is not apparent. If Bush had remained solvent, as he was when the covenants were entered into, the complainant would have lost nothing by Smith’s action. It cannot be inferred that Smith had in view the future insolvency of Bush, or that the land would be taken from him, and Sparrow be left alone responsible to him for the purchase money. It must be presumed that he acted upon the idea that Bush was and would remain financially responsible, as well as did the complainant. If Sparrow had supposed at the time of the execution of the deed that Bush would become- insolvent, it is not to be presumed that he would have entered into the joint covenants in the deed.
There is no allegation in the bill that there was any collusion between the plaintiffs in the ejectment suit and defendant Smith. If there had been, and the judgment in that case was shown to have been brought about by such collusion, a different case might have been presented to us. There might have then been some basis for a claim of fraud upon the part of Smith, entitling the complainant to relief.
As it is, the mere concealment by Smith from the complainant and Bush of his knowledge of the defect in their title, as it could not harm them, or either of them, saye by the not-contemplated insolvency of Bush, nor benefit Smith, who could make nothing out of the transaction, but must be á loser to the extent of his expenses in litigation, cannot be considered as fraudulent.
We do not consider it necessary to pass upon this question. The legal effect of the covenant can be determined in the suit upon the covenants now pending at law.
The decree below is affirmed, with costs.
The judgment of this Court will be entered of date October 5, 1886.
