Fitzhugh v. Barnard

• Decision Date: 05 December 1863
• Court: Michigan Supreme Court
• Parties: Richard P. Fitzhugh v. John L. Barnard and others

12 Mich. 104

Richard P. Fitzhugh v. John L. Barnard and others

Supreme Court of Michigan

December 5, 1863

Heard October 22, 1863 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Appeal by defendants from Saginaw Circuit in chancery. The facts necessary to an understanding of the legal questions are sufficiently stated in the opinion.

Decree of the Circuit Court affirmed in part, and reversed in part and the bill as to defendants Avery, Eddy and Murphy dismissed, with the costs of both courts.

W. L. Webber and G. V. N. Lothrop, for complainant:

Newell Barnard had notice of complainant's title when he received the deed from Riggs. The legal title appeared in Fitzhugh by the Saginaw records, through the mortgage deed of Riggs to Howard and Wadhams, and the conveyance by them to Fitzhugh in 1856. Though this was a mortgage title, still it was a legal title, and gave the right to the possession. Schwarz v. Sears, Wal. Ch., 170; Stevens v. Brown, Wal. Ch., 41; Mundy v. Monroe. 1 Mich. 68. Complainant's possession was notice: 2 Lead. Cas. in Eq., 165. N. Barnard himself occupied as subtenant of complainant; and no tenant will be allowed to ignore his landlord's claim of title: 1 Greenl. Ev., § 24. The sub-lease to Barnard expressly refers to complainant's lease to Partridge, and this is notice: 2 Lead. Cas. in Eq., 168-9. And there is other evidence of actual knowledge. J. L. Barnard is bound by the notice to N. Barnard, who acted for him. But J. L. Barnard is clearly a man of straw; it is Newell Barnard who is the real party.

Under the evidence it is claimed that complainant was in possession of all the premises, including the boom. On the case as it stands, an account of the rents and profits of the boom should be decreed. It is possible that the bill was originally open to the objection of multifariousness; but that objection was not taken either by answer or demurrer, and should not be heard now: Story Eq. Pl., § 284, 284 a; 3 How. 333; 4 Blackf. 249; 9 G. & J., 281; 10 G. & J., 480; 10 Ohio 456.

Moore & Gaylord and C. L. Walker, for defendants:

The bill should have been dismissed as to Newell Barnard. It is not alleged or pretended that he sets up any claim in himself in the premises. The bill can not be sustained for the purpose of an accounting. There seems to be but one class of cases where rents and profits can be recovered by bill in equity, for a tortious occupation of lands; and that is, where the lands belong to an infant. The wrong-doer is then considered as guardian or trustee for the infant, who is greatly favored: 1 Story Eq., § 511; 3 Vern. 723; 2 Vern. 342; 1 Vern. 295; 3 Atk. 262; 1 Ves. sr., 232; 6 Ves. 73. Though the objection of multifariousness is not taken at all by demurrer or answer, the court may, sua sponte, dismiss the bill for this cause. But that is not the only ground of objection. The claim for the rents and profits is not one of equitable jurisdiction. It can only be prosecuted at law. The bill should also be dismissed as to Avery, Eddy and Murphy, who are only made parties for the purposes of an accounting.

Complainant has not established his title as against John L. Barnard. The simple quit-claim of the land by the mortgagees, after decree of foreclosure, making no reference either to the mortgage, the debt secured thereby, or the decree, could not operate as an assignment of the mortgage, or of the decree into which it was merged. It was a mere nullity: 1 Wash. on Real Prop., 521, note; 5 Frost, 425; 2 Cow. 195; 1 Ala. 728; 1 Ohio 157; Dougherty v. Randall, 3 Mich. 587.

Two questions, therefore, arise: 1. Is any one of the grantees in the chain of Newell Barnard's title a purchaser for a valuable consideration? 2. If so, did he purchase without notice of complainant's title by the unrecorded deed, or of the existence of a title or lien under the mortgage?

As to the first: The evidence shows Sutherland and both the Barnards to have purchased for a valuable consideration.

As to the second: It will be claimed that the exception in the covenant against incumbrances, in the deed from Lauren P. Riggs to Jeremiah Riggs, of a mortgage given in 1830 or 1831, for $ 1,000, to Howard & Wadhams, is a constructive notice of the present existence of that mortgage or a title under it. But from the time of the records of that mortgage to the execution of the deed of Lauren P. Riggs, more than 22 years had elapsed, and the presumption of payment had become conclusive: 5 Johns. Ch., 552; 12 Johns. 242; Cook v. Finkler, 9 Mich. 131.

The quit-claim deed on record, from the mortgagees to the complainant, was on the records of deeds, not of mortgages, and could give no notice to an investigator of title tracing the mortgage interest. It is, too, a mere naked quit-claim, making no reference to the mortgage, and was, so far as a conveyance of the mortgage title is concerned, a mere nullity. Indeed, a title by quit-claim is of itself said to be suspicious: 33 Miss. 291.

The exception in the deed of Lauren P. Riggs does not recite or state the fact that there is any such existing incumbrance; it simply warrants the grantee against any other claim than this, leaving the title as to this without a warranty.

It certainly does not give any notice that this mortgage had ripened into a title absolute more than twenty years before. The implication is directly otherwise--that the fee was still in Lauren P. Riggs, subject to no incumbrance, unless it was to a certain mortgage, and as to that, it asserted nothing.

But if complainant claims the benefit of this notice, he must limit his claim to the mortgage. Of this only did it give any notice, and no record authorized any inference that it had ripened into a title. Now the record in relation to that mortgage raised the clear presumption of payment.

We insist, therefore, that there was no constructive notice of complainant's title, or of any title under that mortgage.

Actual notice of complainant's title is not established by the evidence.

To give the master's deed any force against defendants, they should have had notice of the existence of that deed: 2 Lead. Cas. in Eq., 184; 6 Barb. 373; 16 Miss. 418; 2 Md. 672; 1 S. & M., 78; 17 Wend. 24.

Of this there is no evidence.

The quasi possession under complainant was evidence merely of the claim of complainant; a claim which investigation showed to be without foundation: 1 Hill on Vendors, 405; 2 Sug. on Vendors, 1052, n.; 2 Lead. Cas. in Eq., 168.

The next issue is as to the possession of the complainant. This is admitted and proved as to a portion of the lands, and denied as to the boom, which constituted the most important part of the premises described in the bill.

To maintain the suit, actual possession is necessary, both under and without the statute: 2 Comp. L., § 3490; 8 Ohio 384; 13 I ll., 205; 17 Ill. 139; 3 Halst. Ch., 341; 4 Cal. 43.

The ground of the jurisdiction of the court of equity, is, that in no other way can a person in possession quiet his title. And the fact of jurisdiction is confined to cases where there is no other redress: Stockton v. Williams, Wal. Ch., 120, and 1 Doug. Mich., 546.

For this reason the bill should be dismissed.

Manning, J. Christiancy and Campbell, JJ. concurred. Martin, Ch. J. was absent.

OPINION

Manning J.

This is a bill to remove a cloud from complainant's title. It prays a release from John L. Barnard, one of the defendants, of an alleged pretended title set up by him to the premises mentioned in the bill, and an accounting by him and the other defendants, for the rents, profits and use of a boom, situated upon and occupying a part of the premises, for the years 1860 and 1861.

We entertain no doubt as to complainant's title, and his right to a release from the defendant John L. Barnard.

The land in controversy was taken up by Henry Howard, in 1829. In July, 1831, it was conveyed by him to Lauren P. Riggs, from whom both parties claim title. On the 3d October, 1832, Riggs mortgaged the land to Henry Howard and Ralph Wadhams, for one thousand dollars. This mortgage was afterwards foreclosed by Howard and Wadhams, in the Supreme Court of the territory of Michigan, and the mortgaged premises were sold and deed given under the decree to Howard & Wadhams, by William Draper, master in chancery, on the 18th April, 1835. The master's deed was recorded in Oakland county, instead of Saginaw county where it should have been recorded. On the 3d May, 1836, Howard & Wadhams conveyed to Fitzhugh, the complainant. Such is complainant's deed from Riggs.

Now for Barnard's title. On the 9th September, 1856, twenty years after Fitzhugh had acquired his title, Lauren P. Riggs conveyed the premises to Jeremiah Riggs, with a covenant of seizin, and against incumbrances, "except a mortgage given in 1830, or 1831, for one thousand dollars, to Howard & Wadhams." Jeremiah Riggs, on the 5th March, 1857, quit-claimed one undivided half of the premises to J. G. Sutherland, who, on the 10th April, 1860, quit-claimed to J. White, who, on the same day, quit-claimed to Barnard. On the 6th February, 1858, Jeremiah Riggs quit-claimed the other undivided half to defendant Newell Barnard, who, on the 19th March, 1858, quit-claimed to J. L. Barnard.

Had the deed from Draper, the master in chancery, to Howard &amp Wadhams, been recorded in ...