35 Mich. 58 | Mich. | 1876
Edwin H. Wilson and William Wilson claimed title, as tenants in common, to a certain eighty acres of land, as devisees of George Barber, deceased.
On account, of a difficulty arising between Edwin and William, who were brothers, William took and retained exclusive possession of the west forty aci'es of said land, and Ed win of the east forty. While in this condition, and in October, 1867,
After the appearance and answer of defendant Edwin H. had been put m and part of the proofs had been taken, complainant petitioned the court for leave to amend his bill of complaint by setting forth the facts as to how he acquired his interest in the mortgage, which were as follows: “ That on or about the first day of August, 1868, the said Robert Rowe, acting as your orator’s agent, and with the means and under the instructions of your orator, purchased of the *said William Wilson for your orator the note given for the first installment named in said mortgage, and said note was then by said Wilson delivered to said Rowe for your orator; that afterwards, and on or about the first day of February, A. D. 1870, the said Rowe, still acting as the agent, and with the funds of your orator, purchased of the said William Wilson the note given for the second installment named in said mortgage, and said note was then delivered to said Rowe for your orator, but a formal assignment of an interest in said mortgage corresponding to said notes was not made until the 16th day of January, 1874.” From an abstract of title put in evidence it appeared that this mortgage was assigned by William Wilson to Lucius Babcock March 1,1871, and by Babcock to complainant July 3, 1873; and there also appears to have been another assignment from William Wilson to complainant January 10, 1874. It also appears from the abstract that complainant discharged the west forty acres from the operation of this mortgage July 3, 1873.
It is now insisted under the facts as stated that because Edwin H. Wilson, at the time of the partition, executed a warranty deed of the west forty to Robert Rowe, the premises “then severed to defendant Wilson were constituted the pri
Nor does this case come within the principles of Crawford v. Edwards. In that case Edwards had accepted a deed of the mortgaged premises made subject to the payment of the mortgage debt, and in which Edwards had assumed the payment of it, and sufficient of the agreed consideration or purchase price of the land was left in his hands for that purpose. He thus, as between the parties, *became legally and equitably bound to pay the mortgage debt. No such considerations, however, exist in this case. No such agreement was made, and no equitable consideration arises under which he should be so bound. On the contrary it would be grossly unjust and inequitable to require him to make any such payment. No such liability arises from the covenant in the conveyance in this case. It was but a mere partition of the premises then owned' in common, and by analogy to a partition made under the statute, as between the parties, the lien would be transferred to the mortgagor’s half of the premises, which would become the primary security for the payment of the debt, and which must first have been sold for that purpose. Webb having discharged the part thus primarily liable, long after the time he became the equitable owner of this mortgage, as stated in his petition, if not the legal, as appears from the abstract, thereby lost any claim he might have had against Wilson’s share of the premises, as the west forty at the time of the discharge was worth more than the amount then claimed to be owing upon this mortgage.
The decree of the court below, dismissing the bill, must be affirmed, with costs.