35 Mich. 97 | Mich. | 1876
The bill of complaint was filed in this case to foreclose a mortgage dated July 28, 1871, executed by John Whitmore and Hattie L., his wife, to complainant to secure the payment of thirteen hundred and fifty dollars.
On the 8th day of April, 1872, Whitmore and wife by warranty deed conveyed the mortgaged premises to Charles W. Cadwallader, subject to this mortgage. The consideration, as expressed in this deed, was twenty-four hundred dollars, and
At the time this mortgage and deed were given, John Whit-more only owned an undivided one-fourth interest in *the premises, which title he derived through one of the heirs of Luna Cook, deceased. Hattie L. Whitmore, his wife, was also one of the heirs of Luna Cook, and as such was the owner of another undivided one-fourth. The deed by them to Oadwallader, and the mortgage by them to comjdainant, were in form a conveyance of the entire title to the premises, and in the mortgage they covenanted that they were well seized of the premises in fee simple, and that they would warrant and defend them, etc. Oadwallader paid the interest as it became due upon this mortgage. Some time in January, 1874, he ascertained that his title to the premises was defective, and in February of the same year he procured quit-claim deeds from the remaining heirs of Luna Cook, thus perfecting his title to the premises. In July following he paid another installment of interest falling due upon the mortgage. The decree of the court below was in form against the entire premises. There was no personal decree against Oadwallader. From this decree he appeals, claiming that only the interest which he acquired from Whitmore and wife, under his deed from them, can be affected by these proceedings, and that the interest which he acquired from the other heirs is exempt from tbe burthen of the mortgage in question. •
Oadwallader accepted of a deed of these lands from the mortgagors, in which he assumed and agreed to pay this mortgage, and, according to agreement, retained in his hands sufficient of the consideration for that purpose. He took the land subject to the payment of this incumbrance, and also bound himself personally to pay the amount.— Crawford v. Edwards, 33 Mich., 354, and Miller v. Thompson, 34 Mich., 10.
lie now claims that on account of Whitmore and wife’s de