Adair v. Adair

• Citation: 5 Mich. 204
• Court: Supreme Court of Michigan
• Decision Date: 08 June 1858
• Parties: Edmund P. Adair v. George E. Adair

5 Mich. 204

Edmund P. Adair v. George E. Adair

Supreme Court of Michigan

June 8, 1858

Heard May 22, 1858 [Syllabus Material] [Syllabus Material]

Appeal from Macomb Circuit in chancery.

The bill was in the ordinary form, for the foreclosure of a mortgage, dated February 9th, 1837, given by defendant to Samuel Adair, and purporting to be made to secure the payment of $ 650, in thirteen installments of $ 50 each: the first to be paid on the first day of April then next, and the remainder semiannually, commencing on the first day of November then next, with interest. The mortgagor covenanted in the mortgage to make these payments.

The bill alleged that on the 19th day of May, 1837, Samuel Adair by an instrument in writing set forth at large in said bill, transferred to complainant all his right, title, and interest in the mortgage, and authorized him to collect and indorse satisfaction of the same. The mortgage was acknowledged and recorded on the day of its date, but the assignment was not witnessed, acknowledged, or recorded. The bill claims the whole amount of the mortgage to be unpaid and owing to complainant.

Defendant answered, admitting the execution of the mortgage, but denying that he was at the time owing Samuel Adair anything. And he avers that the mortgage was executed as security for the performance by defendant of a parol agreement made with said Samuel to pay certain debts then outstanding against him, and to work for and assist said Samuel in supporting and maintaining himself and his wife (who were the parents of the parties to this suit), and that the mortgage was given for no other purpose, and on no other consideration.

He alleges that the assignment of the mortgage to complainant was without consideration, and in fraud of the creditors of said Samuel, who is now deceased, and that it never in fact was delivered to complainant in the life time of said Samuel. And he claims that, at the time of such assignment, Samuel Adair was largely indebted to defendant; and also that afterwards, after the death of said Samuel, but before notice to defendant of such assignment, he paid debts contracted by Samuel Adair to a large amount; which indebtedness and payment he claims to have applied on the mortgage.

Replication to the answer having been filed, considerable evidence was introduced on the part of defendant, tending to show that he worked for his father a part of the time during the years 1835, 1836 and 1837--in all about a year and a half; that in 1837, the father moved from Shelby, Macomb county, where the parties had resided, to the Grand River country, taking defendant with him, and that he stated to a witness that defendant was working for him on a contract to work for two years with his team for $ 300 a year, and when his time was up he should settle with him. Defendant also proved the payment by himself of a number of debts against Samuel Adair, before as well as after the death of the latter.

On the part of complainant, evidence was introduced tending to show, as was claimed, that Samuel Adair transferred to defendant his property, real and personal, in or about the year 1837. Among other evidence was that of Laura Lockwood, a sister of the parties, who testified as follows: "In 1836, Samuel Adair lived on his old farm in Shelby; he moved to Grand River country in 1837. I think George E. Adair had all his father's personal property in 1837--I can not describe the property, but it was all his father had. There were cows, hogs; I can not tell what the team was--I have forgotten. Father told me he had given George all the property for his support. I think this was in the spring or early in the year 1837."

On the hearing in the court below, the bill was dismissed with costs; and complainant appealed to this court.

Decree reversed, and one entered in favor of the complainant, with costs.

Eldredge & Hubbard, for complainant:

The assignment of the mortgage purports to be for a valuable consideration, and defendant can not impeach it.

Possession of the mortgage by complainant is prima facie evidence of its delivery at the time the assignment bears date, and in absence of any proof to the contrary, is conclusive upon that point: Wall v. Davis, 6 Pet. 124; Green v. Yarnall, 6 Miss. 326; Dunn v. Gaines, 1 McLean 321; Hatch v. Haskin, 5 Shep. 391; Cutts v. York Man. Co., 6 Shep. 190; McConnell v. Brown, Litt, Sel. Cas., 459. Here there is no proof to rebut the presumption of delivery.

No one but the party, or those claiming under him, will be allowed to impeach a deed on the ground of fraud: Jackson v. Eaton, 20 Johns. 478.

The right to foreclose a mortgage is not barred by any statute or rule of the common law until the expiration of twenty years.

H. Cartter and A. S. Robertson, for defendant:

I. The demand has become stale. The lapse of time, taken in connection with the proofs, is sufficient to convince that the mortgage was either given solely under a family arrangement, or was actually paid.

1st. The time on which the first semi-annual payment became due was about eighteen years before the bill was filed.

2d. It does not appear during all that time that the defendant ever had actual notice of the existence of the assignment to the complainant by Samuel Adair, their father.

3d. The assignment was not acknowledged and was not recorded, so that there was no implied notice of its existence.

4th. The parties are brothers; had lived in the same village, as it appears, ever since the return of George, the defendant, from the Grand River country, in 1838.

5th. Further to show no suspicion of the existence of the assignment, or of any pretended claim on the mortgage, not only no administration appears to have been had by any person on the estate of Samuel Adair, but the defendant, after the death of his father, continued to pay his debts.

6th. The view that the mortgage was given and intended to be security solely for the defendant's alleged contract with his father, is amply sustained by the testimony of Mrs. Laura Lockwood, one of the complainant's witnesses.

So that the lapse of time, and surrounding circumstances, are deemed to be amply sufficient to authorize the court to hold the mortgage debt paid: King v. King, 1 Stockton 44; Gould v. White, 6 Foster N. H., 178; Daniel v. Whitfield, Busbee Law, 291; Diamond v. Tobias, 12 Pa. S. R., 312; Bander v. Snyder, 5 Barb. 63; Atkinson v. Dance, 9 Yer. 424; Blake v. Quash, 3 McC. 340.

II. The defendant insists there is an ample proof of actual payment of more than the sum secured by the mortgage to the said Samuel, and for and in his behalf, and at his request, before any notice of the assignment was given to the defendant.

III. The whole proof sustains the statements of the answer, that, by an arrangement with Samuel Adair, the defendant took all his property to pay his debts, and to support him during his life time--which he did; and that, therefore, the mortgage was simply given as a security for his performance; that the assignment was not intended by Samuel Adair to be absolute; and that complainant in equity has no claim by virtue thereof.

OPINION

Martin Ch. J.:

This is a bill to foreclose a mortgage given in January, 1837, by the defendant to one Samuel Adair, who was the father of these parties, and by the said Samuel assigned to this complainant in the month of May following. The mortgage purports to have been given to secure the payment of the sum of $ 650, in semiannual installments of $ 50 each, with interest, and contains a covenant for the payment thereof accordingly. To defeat this action the defendant insists in his answer, 1st, that the mortgage was not, in fact, given to secure the payment of $ 650, or of any sum of money, but as security for the execution of a certain parol agreement for the payment of certain debts outstanding against the said Samuel, and for aid in supporting him and his wife; 2d, that the assignment was without consideration, and fraudulent and void; and that it was never delivered to the said complainant by said Samuel; and, 3d, set-off, to a large amount, which he claims should be applied in payment of the sum secured to be paid by said mortgage.

The execution and delivery of the mortgage are admitted; and we, therefore, proceed to the consideration of the defense.

The first proposition of the defendant is wholly unsustained by the evidence. The only testimony which is claimed, by the defendant's counsel, to bear directly on this point, is that of Laura Lockwood; but there is nothing in this, nor in the relation of the parties, or surrounding circumstances, which justifies the conclusion that the expressed contract of the mortgagor and mortgagee was not their real contract.

But without wasting words on this subject, however strong the evidence might be, this defense would be of no avail. To hold that a party may reply to an action upon a written instrument, "It is true I made the contract, but it was not my agreement, and I did not intend to be bound by it," would set the law of contracts all afloat, render the certainty of the law a fiction, and place the obligations of parties beyond judicial control. It is true that, if there be fraud or mistake in the contract, equity will relieve, to annul or correct it, as...