Berry v. Whitney

CourtSupreme Court of Michigan
Citation40 Mich. 65
Decision Date15 January 1879
PartiesLucy Berry v. Channing Whitney

Submitted October 31, 1878; November 1, 1878

Appeal from Lenawee. Submitted October 31 and November 1, 1878. Decided January 15, 1879.

Affirmed with costs.

A. L Millard and A. Howell for complainant and appellant. Clauses struck out of an instrument may be regarded in construing it 2 Pars. Con. [4th ed.], p. 14, n (2); Strickland v. Maxwell, 2 Cr. & M., 539. It is as usual to covenant against known as against unknown encumbrances, Smith v. Lloyd, 29 Mich. 382. Equity will not relieve one as against a subsequent purchaser for a mistake of law, 1 Story's Eq., Jur., §§ 111, 113, 116, 137; Hunt v. Rousmaniere, 1 Pet. 17; Shotwell v. Murray, 1 Johns. Ch., 512; Barnes v. Bartlett, 47 Ind. 98. The meaning indicated by the words of a deed must be taken to show the intention, 1 Spence's Eq. Jur., 556; parol evidence cannot be introduced to vary its terms (Adair v. Adair, 5 Mich. 204; Fuller v. Parrish, 3 Mich. 211; Hyde v. Tenwinkel, 26 Mich. 93; Beers v. Beers, 22 Mich. 42) nor to add to them (Sutherland v. Crane, Walk. Ch., 523) nor to avoid or restrict the covenant of warranty, Rathbun v. Rathbun, 6 Barb. 107; Movan v. Hays, 1 Johns. Ch., 342; Estabrook v. Smith, 6 Gray 579; general covenants will not be cut down unless it clearly appears that the parties so intended, 2 Sugd. on Vendors, 104, § 2, and where covenants are of diverse natures and concern different things, restrictive words added to one shall not control the generality of the others although they relate to the same land, id., 114, § 8; Rawle Cov. of Title, 516, § 4; the covenant against encumbrances and the covenant of warranty are distinct and an exception in one does not extend to the other, id., 497; Howell v. Richards, 11 East, 633; Sumner v. Williams, 8 Mass. 162; Bemis v. Smith, 10 Metc. 194; Donahoe v. Emery, 9 Metc. 63; the covenant of warranty runs with the land, and the assignee of it is not affected by any equities between assignor and covenantor, Rawle Cov. of Title, 376; Suydam v. Jones, 10 Wend. 180; Whitman v. Weston, 30 Me. 285; Brown v. Staples, 28 Me. 497; 1 Story's Eq. Jur., §§ 108, 139, 165, 434, 436, and the covenantor cannot show that a less consideration was paid than is stated in the deed, for the purpose of affecting the assignee, Greenvault v. Davis, 4 Hill 648.

Stacy & Underwood for defendant and appellee. The consideration expressed in a deed is only prima facie evidence of the actual consideration, which may be shown by parol to be more or less than is expressed, Marston v. Hobbs, 2 Mass. 433; Smith v. Strong, 14 Pick. 128; Bullard v. Briggs, 7 Pick. 533; Belden v. Seymour, 8 Conn. 304; Dexter v. Manley, 4 Cush. 26; Bingham v. Weiderwax, 1 Comst. 509; M'Crea v. Purmort, 16 Wend. 460; Smith v. Lloyd, 29 Mich. 382; Morse v. Shattuck, 4 N.H. 229; Sedgwick on Damages, 174-8. Of repugnant clauses in a deed, the earlier prevails, 2 Pars. Cont., 513. A general covenant of warranty does not conclusively extend to incumbrances of which a purchaser knows at the time of contracting and agreed to discharge as part of the price, Allen v. Lee, 1 Cart. [Ind.], 58; Ellison v. Ellison, 1 Lead. Cas. in Eq., 297, n. Where a deed recites that a mortgage encumbers the premises and contains a general covenant of warranty besides, the recital qualifies the covenant, Jackson v. Hoffman, 9 Cow. 271; Bricker v. Bricker, 11 Ohio St., 240; Jackson v. Stackhouse, 1 Cow. 122; Potter v. Taylor, 6 Vt. 676; Keith v. Day, 15 Vt. 660; Cole v. Hawes, 2 Johns. Cas., 203; McKinstry v. Benson, 3 Johns. Cas., 562; Whallon v. Kauffman, 19 Johns. 97; Davis v. Lyman, 6 Conn. 249; 2 Pars. Cont., 501, n. u. A deed absolute on its face may be shown by parol to be a mortgage, Kimball v. Myers, 21 Mich. 276. The defendant in proceedings for specific performance may show by parol that the written contract does not truly express the agreement of the parties, but that through fraud, surprise or mistake there is some material variance, 2 Story's Eq., §§ 769, 770; 1 Sugd. Vend., ch. 3, § 8, p. 224; Rawle on Cov. of Title, 129, 522, 523. In construing a deed or written contract all the circumstances are to be taken into account, such as the value of land sold and property taken in exchange, Payne v. Avery, 21 Mich. 524.

Marston, J. The other Justices concurred.

OPINION

Marston, J.

Complainant filed her bill in this case to remove a cloud from the title to certain lands claimed bye her, and to require defendant to convey to her the interest he received under and by virtue of a deed of the premises from the Michigan State Insurance Company to him. The bill in its effect is one for specific performance.

The defendant in April, 1872, to secure a promissory note for $ 2,500, executed and delivered to the insurance company a mortgage upon certain premises then owned by him in the city of Adrian.

In May, 1874, he conveyed this property by warranty deed to Richard A. Watts. The consideration as expressed therein was $ 4,000, and the grantor covenanted therein that he was well seized of the premises in fee simple; that they were free from all encumbrances, except the above mortgage, and that he would warrant and defend the same against all lawful claims whatsoever.

In July, 1874, Watts sold and conveyed these premises by quit-claim deed to complainant, she at the same time conveying to him in consideration therefor, by warranty deed, 640 acres of land in Arkansas, and she then entered into possession of the premises under her deed from Watts.

In April, 1875, a portion of the interest on the note secured by mortgage given by Whitney to the insurance company being due and unpaid, the mortgage was foreclosed and the premises bid in by the insurance company, and in July, 1876, the time for redemption having expired, defendant Whitney paid to the company the amount for which it had bid off the premises, and received a quitclaim deed of the premises. He also paid to the company the balance of the note and received the note and mortgage from the company, and defendant claims that under his deed from the insurance company he is the absolute owner of the premises.

Complainant claims that as she derived title through defendant's warranty deed to Watts, it was and is defendant's duty to protect her title as against said mortgage, and that whatever title he acquired under the deed from the insurance company inured to her benefit. Such in brief is complainant's claim and theory.

The defendant's differs therefrom in this. He alleges that the premises were by him conveyed to Watts under and in pursuance of a written contract by which these premises were to be by him conveyed subject to this mortgage; that he (defendant) prepared the deed and executed the same and tendered it to Watts; that as prepared and tendered it described the premises as free from all encumbrances except this mortgage and taxes for the year 1874, "all of which said Watts is to pay;" that Watts objected to this clause, saying that under the agreement he was to take the place subject to the mortgage, and that if he chose to let the place go for the mortgage he had a right to do so; that a reference to the written contract showed his position was correct; that Watts then advised defendant to strike out of the deed the words "all of which said Watts is to pay," which would make the conveyance subject to the mortgage, and that relying upon what Watts (who was an attorney) said, these words were stricken out and the deed delivered; that the consideration named in this deed was $ 4,000; that only $ 1,400, in property, was actually paid, which, with the amount of the mortgage, interest and taxes, made the value of the premises and consideration $ 4,000. Defendant denies that complainant is a bona fide purchaser, and sets up other matters which will be noticed farther on.

It may be of some importance at the outset to ascertain whether complainant is in any better position to seek the relief prayed for than her grantor Richard A. Watts would be had he not parted with his title, as we may find it not entirely clear that he would be entitled to the relief sought if defendant's version of the entire transaction is correct.

That the defendant's version of the agreement between Watts and himself and what took place at the time of the delivery of the deed, must be taken and accepted as true is beyond dispute. The defendant was examined in his own behalf and testified fully and satisfactorily...

To continue reading

Request your trial
32 cases
  • State ex rel. Robertson v. Hope
    • United States
    • Missouri Supreme Court
    • December 22, 1890
    ... ... Whitcomb, 71 Mo. 651; Merrill ... v. Locke, 41 N.H. 486; Love v. Starkey, 18 N.W ... 49; Arnholt v. Hartwig, 73 Mo. 485; Berry v ... Whitney, 40 Mich. 65; Letson v. Reed, 45 Mich ... 27; Carrier v. Cameron, 31 Mich. 379; 1 Am. Lead ... Cas. [4 Ed.] 53; Cass County ... ...
  • Ditton v. Ed. Purcell
    • United States
    • North Dakota Supreme Court
    • July 26, 1911
    ...Mfg. Co. v. New England Co. 24 L.R.A. 417, 6 C.C.A. 508, 18 U.S. App. 256, 57 F. 685; Letson v. Reed, 45 Mich. 27, 7 N.W. 231; Berry v. Whitney, 40 Mich. 65; Whitaker Iron Co. v. Preston Nat. Bank, 101 146, 59 N.W. 395; Shotwell v. Harrison, 22 Mich. 410; Benjamin, Sales, note p. 446; Starr......
  • Bockes v. Union Mut. Cas. Co.
    • United States
    • Iowa Supreme Court
    • September 26, 1930
    ...so, and knowing the law, took advantage of such ignorance, to mislead him by a false statement of the law, it constitutes fraud. Berry v. Whitney, 40 Mich. 65;Hubbard v. McLean, 115 Wis. 9, 90 N. W. 1077. The appellant, Bockes, had had no experience in insurance business. He was not versed ......
  • Bank of Loretto v. Bobo, 8 Div. 31
    • United States
    • Alabama Court of Appeals
    • March 17, 1953
    ...the representations of the specialist. Hicks v. Deemer, 87 Ill.App. 384; Bridgewater v. Byasse, 93 S.W. 35, 29 Ky.Law Rep. 377; Berry v. Whitney, 40 Mich. 65; Rosenberg v. Cyrowski, 227 Mich. 508, 198 N.W. 905; Tolley v. Poteet, 62 W.Va. 231, 57 S.E. 811; Altgelt v. Gerbic, Tex.Civ.App., 14......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT