102 Mich. 274 | Mich. | 1894
The defendants John H. De May and Ella De May are husband and wife. In 1889, John H. built a brick block, consisting of two store buildings, in the village of Ithaca. He purchased of the complainant a strip of land Z\ feet wide, and one-half of a brick wall thereon, for the agreed price of $688. De May, having .leased the stores to defendants Ludwig and Netzorg, gave his notes for the amount of the purchase price of the 31-feet of ground, and assigned the leases to complainant as security. Neither the leases nor the assignment were
1. It is contended by complainant that it was not necr essary to the protection of his rights that the assignment of the leases be recorded; that, the premises being in the possession of the lessees, and the leases in the custody of the complainant, it was the duty of the defendant Ella De May to make inquiry as to the terms of the leases, and as, to the possession of the instruments, before purchasing, as the leases were the only evidence of the grantor’s title to the rents reserved, and of his right to collect such rents from the tenants in possession; and that, in the absence of such inquiry, she (Mrs. De May) would be chargeable with notice of all the facts which she would have learned upon making the inquiry. We think that, while such possession of the lessees would be notice of their rights, it would not be notice that the title of De May had been incumbered by the assignment of the leases reserving rent to himself.
2. The question of fact is somewhat difficult of solution. There are some circumstances tending to show that De May had a purpose of defeating his creditors in making a transfer to his wife, and that the alleged indebtedness from him to his wife was merely colorable. The defendant’s theory is that when De May engaged in business he was assisted by Mrs. De May’s father, on the understand
The decree of the court below will be reversed, and a decree entered in this Court in favor of the defendant Ella De May.