Wright v. Dudley

8 Mich. 115 | Mich. | 1860

Campbell J.:

The bill in this case was filed to foreclose a mortgage, given by Owen Dudley and wife, to complainant, concerning which no controversy arises. But the bill proceeds to charge that, a year previous to the date of this mortgage, Horace Green, a defendant, executed a mortgage of the same premises, to one Richard Elliot, who assigned the same to Henry P. Baldwin; this latter mortgage being duly recorded shortly after its date. That in August, 185^", and subsequent to the date of complainant’s mortgage, Horace Green called on the holder of the Elliott mortgage, and paid the amount, asking and receiving an assignment thereof to Norman Green, his son. Complainant avers that this money so paid was Horace Green’s, and that therefore he had no right to take an assignment to his son, and that the money should be regarded as a payment. He also avers that Dudley told him, when he took the mortgage now in process of foreclosure, that the land was unincumbered.

The Circuit Court of Shiawassee made a decree, cancelling the mortgage held by Norman Green, and granting costs against Horace and Norman Green. The decree also contained the usual clauses of foreclosure decrees, upon the complainant’s mortgage against Dudley and wife.

The defendants, Horace and Norman Green, claim that the complainant’s bill makes out no case against them, and that without the necessity of relying on their answers or upon testimony, they are entitled to a reversal of the decree against them.

The bill contains no averments from which we can gather the state of the title at any time, or which show any privity of title whatever among these parties. It is not averred that Dudley traced title in any way through Elliott or Green, and there is no averment or showing from which it appears that, if the title had been so traced, there was any agreement made by Horace Green, or any obligation resting upon him, which would entitle Dudley or his grantees to require him to pay or remove the Elliott mortgage. Unless some such duty rested on him, complainant has no concern with his doings.

There was therefore no foundation whatever for any relief against Horace or Norman Green, and the bill should have been dismissed as to both of them.

We take occasion to notice here an omission of the register, in certifying the transcript, which becomes immaterial in this case, but which arises probably from a misapprehension which has led to several similar mistakes in cases brought up from that county. Instead of giving copies of the writs, orders, and other proceedings, he has returned nothing in full but the pleadings and the decree. The whole proceedings should have been certified in full. The transcript should present every thing which appears in the court below.

The decree must be reversed so far as it relates to Horace Green and Norman Green, and the rights of either or both of them, and the bill must be dismissed as to both of them, with costs.

The other Justices concurred.