14 Mich. 83 | Mich. | 1866
In February, 1838, one Consider Crapo bought certain lands of Hugh Railey, and to pay for them was to convey two parcels of land, and to give a mortgage on other lands for $200. By mistake he gave a mortgage covering three parcels, two of which were the same he had already bargained to convey to Railey. One of the parcels was deeded the same day, and the other subsequently. Railey assigned $150, then remaining due on this mortgage to Wing, in May 1839, the mistake not having then been discovered, and the deeds to Railey not having been recorded. Railey also guaranteed the payment of the notes and mortgage. Wing now seeks to foreclose it against Railey’s heirs, Railey and Crapo being both dead.
In May, 1844, Wing gave his bond to Railey agreeing for the sum of $250, payable in four annual payments, to re-assign the Crapo mortgage, and to convey to Railey a lot of land in Washtenaw county. Three of these payments were made upon maturity. Whether the fourth payment was made does
By the sale of the Washtenaw lands, the balance due from Railey on this bond was paid, and he was entitled to demand from Wing his mortgage, and a balance in cash of about four hundred dollars. There is no evidence showing by what process Wing managed to get back from him this peculiar document. It appears affirmatively that there was no new consideration.
In the absence of clear proof wo shall not characterize this performance .as a fraud, but we think a party who seeks to rely upon it must seek some other forum than a Court of Equity.
The bill was properly dismissed. The decree must be affirmed, with costs.