Albright v. Cobb

Decision Date20 October 1874
Citation30 Mich. 355
CourtMichigan Supreme Court
PartiesSarah C. Albright v. William R. Cobb

Submitted on Briefs July 17, 1874.

Error to Livingston Circuit.

Judgment reversed, with costs, and a new trial awarded.

H. H Harmon, for plaintiff in error.

Dennis Shields, for defendant in error.

OPINION

Christiancy J.:

This was an action of ejectment brought by the plaintiff in error and tried in the Livingston circuit before the court without a jury, where judgment was rendered for the defendant, and the plaintiff brings the case here by bill of exceptions and writ of error.

The plaintiff on the trial deduced title from the United States to Olney Hawkins, the first conveyance to him being December 14, 1838. Hawkins conveyed to one Quackenbush, February 5, 1840; Quackenbush and wife conveyed to Hawkins, August 10, 1840; and Hawkins, by quit-claim deed, dated January 25, 1859, conveyed to Roswell Barnes, the original plaintiff in this suit, and of whom the present plaintiff, who has been properly substituted, is the sole heir.

This was the claim of title under which the plaintiff claimed, and without any counter showing it constituted a prima facie case on her part.

But the defendant claimed under, and introduced, first; a mortgage upon the same premises, executed by Hawkins to one Virgil Booth, dated August 17, 1839, for one thousand one hundred dollars, payable in six months; second, an assignment of said mortgage to Joseph Green, purporting to have been executed by Rhoda Booth and Philip Bach, administrators of Booth's estate, dated February 24, 1863, recorded June 9, 1864; third, a quit-claim deed from the widow and heirs of said Booth and from E. W. Morgan and wife, to said Green, dated February 25, 1863, recorded June 9, 1864; fourth, a quit-claim deed from said Green to defendant, dated March 8, 1864, and recorded June 9, 1864.

The defendant also introduced evidence tending to show that prior to the time that Hawkins executed his quit-claim deed to Barnes, he had executed a quit-claim of the same property to Robert D. Power for the consideration of fifty dollars; that when Barnes requested Hawkins to deed to him, he told Barnes of this prior deed to Power, but that Barnes presented to him what purported to be a written request of Mrs. Power and William M. Power, administrators on Robert D. Power's estate, to execute a deed to Barnes, which he did, dating it back to the previous transaction, Barnes representing that he wanted it for the benefit of the Power heirs, and that the original deed to Power was lost; that no consideration was paid for this deed to Barnes; that at the time of the quit-claim to Power, Hawkins told him about the mortgage to Booth, and stated to him that he did not know what was due upon it; but that he had no conversation with Barnes about it.

But the court, in his finding of facts, finds (and this is not questioned in the case), that "on the 8th of January, 1867, Barnes obtained a quit-claim deed from the widow and heirs at law of said (Robert) Power, of their interest in the premises; that no consideration was paid for said deed, and there is no evidence that Barnes paid Hawkins anything for his quit-claim."

The court further finds (as from the evidence he was well authorized to find) that the mortgage in question "was given by Hawkins to Booth to secure a loan of four hundred dollars and the percentage, and the balance of the eleven hundred dollars was added to it on the supposition that it would take two years to foreclose the mortgage;" that "the amount paid by Hawkins on said mortgage did not exceed two hundred and fifty dollars or three hundred dollars. [The evidence of Hawkins tended to show that this was made in two payments, the date of which he could not give, but that one hundred and twenty-five dollars of it was paid about the date of the mortgage.]

The court also finds that Booth died in August, 1859; that "the administrators on Booth's estate, viz.: Rhoda Booth and Philip Bach, assigned said mortgage to Joseph Green on the 24th of February, 1863, which assignment was duly recorded on the 9th day of June, 1864." Exception, however, is taken to the evidence on which the court found the fact of administration on this estate, and that these were the administrators; and this is a main question in the case.

The court further finds that "the heirs at law of Booth executed to said Green a quit-claim deed of said lands on the 25th February, 1863, recorded June 9th, 1864" (exception, however, is taken, and error is assigned, upon the admissibility of the evidence, upon which the finding of this heirship is based). The court also finds "that said Green paid the heirs of Booth six hundred dollars for the mortgage and quit-claim; that on the 11th March, 1864, said Green assigned said mortgage to defendant, which assignment was duly recorded June 9th, 1864; that on the 8th of March, 1864, said Green executed to defendant a quit-claim deed of said lands, recorded June 9th, 1864; that defendant paid Green six hundred dollars for the last mentioned conveyance and the notes which accompanied the Hawkins mortgage; that Green went into possession of said lands soon after he obtained the assignment of the mortgage and the quit-claim deed from the heirs of Booth" [which the evidence shows to have been in 1863], "and cut off twenty or twenty-five acres of bush and timber, and continued in such possession until he assigned and conveyed to defendant, as above mentioned; and that defendant was in possession, clearing, fencing and claiming title to said land when this suit was commenced."

From this statement of the case, it will be readily seen that the defendant claimed to have taken...

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5 cases
  • Svitojus v. Kurant
    • United States
    • Michigan Supreme Court
    • June 3, 1940
    ...property would rightly be in the custody of the administrator. See Cullen v. O'Hara, 4 Mich. 132;Hollowell v. Cole, 25 Mich. 345;Albright v. Cobb, 30 Mich. 355;Parks v. Norris, 101 Mich. 71, 59 N.W. 428. At the time of the death of Mr. Fish, under these authorities, the only person who coul......
  • Gillett v. Needham
    • United States
    • Michigan Supreme Court
    • June 20, 1877
    ...for the defendant with costs of all the proceedings. Upson & Thompson for plaintiff. Unforeclosed mortgages are personal assets (Albright v. Cobb 30 Mich. 355) and only administrator of an intestate can take charge of them (Abbott v. Godfroy's Heirs 1 Mich. 185) or sue for them (Morton v. P......
  • Reynolds v. Continental Ins. Co.
    • United States
    • Michigan Supreme Court
    • April 4, 1877
    ...Weidler v. Farmers' Bank of Lancaster, 11 Sergt. & R., 134; Wright v. De Groff, 14 Mich. 164; Gilbert v. Kennedy, 22 Mich. 117; Albright v. Cobb, 30 Mich. 355. In light of these considerations we may proceed to notice the terms of the plaintiff's proposition and in connection with the cours......
  • Proctor v. Robinson
    • United States
    • Michigan Supreme Court
    • January 3, 1877
    ... ... and took possession of all the chattels, including this ... mortgage: Comp. L. 1871, § 4407; Albright v ... Cobb, 30 Mich. 355; Hollowell v. Cole, 25 Mich ... 345; that complainant and Henry H. being themselves ... executors, it was impossible ... ...
  • Request a trial to view additional results

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