Blanchard v. Tyler

• Decision Date: 03 May 1864
• Citation: 12 Mich. 339
• Court: Michigan Supreme Court
• Parties: John C. Blanchard v. Timothy M. Tyler and another

12 Mich. 339

John C. Blanchard v. Timothy M. Tyler and another

Supreme Court of Michigan

May 3, 1864

Heard April 21, 1864

Appeal in chancery from Shiawassee Circuit. The facts are stated in the opinion.

Decree affirmed, with costs.

A Gould and A. Pond, for the complainant, argued that independent of the question of possession by complainant, the bill might be maintained. The claim of complainant is to be relieved against the deeds of Tyler & Hearse obtained to commit a fraud, and the court has jurisdiction, independent of the statute, to cancel a deed obtained by fraud, and which is a cloud upon title: 5 Paige 501; 2 Paige 482; 14 N. Y., 6; Story Eq. Juris., 699, 700; 9 Paige 388; 6 Pet. 5.

McCurdy & Raynale, for defendants, insisted, among other things that complainant was not only in possession of the land, but that he had no title to it; as by his own evidence it appeared that Lewis conveyed the land to Simonson one day before the execution was issued under which complainant claimed.

OPINION

Christiancy J.:

The bill was filed against Timothy M. Tyler and James Hearse, to remove a cloud upon complainant's title to an eighty acre lot of land in the county of Shiawassee.

The land was patented by the United States to Ira Merrill in 1837.

Merrill (and wife) conveyed to Augustus Grosvenor, July 4, 1838.

Grosvenor conveyed to George Dahash, August 2, 1853.

Dahash (and wife) conveyed to Abram Lewis, July 13, 1855.

All the above deeds were recorded soon after their date, except the one from Grosvenor to Dahash, which was not recorded till the 24th day of May, 1859; and this delay gave occasion to the transactions which led to the present suit.

Complainant derives his title through an execution sale to him upon a judgment against said Abram Lewis. The levy was made December 30th, 1856; the sale, February 28th, 1857; the sheriff's certificate of sale was filed with the register of deeds March 3d, 1857, and his deed was executed to the complainant June 9th, 1860, after the time of redemption had expired, and was recorded the same day. Such is the title shown by complainant.

The defense rests mainly upon a deed from Grosvenor to Tyler, which will be presently noticed. On the 17th day of May, 1858, a few days before the time of redemption expired, Lewis, the defendant in the execution, executed a deed of the same lands to defendant Tyler; but this deed being executed long after the certificate of sale to complainant was filed, was void as against complainant, Tyler being chargeable with notice of the execution sale. But on the 21st day of May, 1858, Tyler obtained a quitclaim deed for the same land from Augustus Grosvenor, whose deed to Dahash had not yet been recorded. The bill alleges that Tyler, at the time he obtained this deed, had knowledge of the previous deed to Dahash, and of complainant's rights, that the deed was without consideration, and that Tyler fraudulently procured it for the purpose of cheating and defrauding the complainant. From a careful examination of the testimony, which we do not deem it necessary here to review, including that of Tyler himself, which charity to him would hardly permit us to review, we are entirely satisfied that these allegations of the bill are well sustained by the proof. As against complainant, therefore, Tyler acquired no title, either by the deed from Lewis or by that from Grosvenor.

But on the third day of August, 1858, Tyler, with his wife, executed a deed of the land to defendant Hearse, and has put in a disclaimer of all interest in the land. The bill charges that Hearse took this deed with full notice of complainant's rights, and of Tyler's want of title; alleges that he paid nothing for the conveyance, and that he received the deed for the purpose of defrauding complainant. Hearse denies this, and sets up the defense of a bona fide purchase, for a valuable consideration, without notice. We are strongly inclined to think, from the testimony of Hearse himself, who was sworn in his own behalf, that he was well aware of the nature of the title, and of the attempted fraud of Tyler, and that he took the conveyance for the very purpose of aiding Tyler in the perpetration of the fraud upon complainant. But whether he did so or not, or whether he had full notice at the time, is immaterial. He paid nothing to Tyler at the time. Tyler was owing him, he says, about seven dollars and fifty cents, which was to apply on the purchase, and he gave him a note, not negotiable, for six hundred dollars, less the last mentioned sum. This note, it was understood, should be paid by turning out other notes. This, it is claimed, was done, but not till some considerable time afterwards. Yet, he admits that immediately after the sale to him, he was fully informed of the nature of the title. Whatever he paid, therefore, was after such notice; and such payment, if in fact any notes of value were turned out, was made in his own wrong, and he must bear the loss: Warner v. Whittaker, 6 Mich. 133. ^[*]

But it is objected, that complainant was not in possession at the time of filing the bill, and that, in the attempt to prove such possession, he has proved the title out of himself, and in one John L. Simonson.

Whether this bill could be sustained independent of the statute (Comp. L., § 3490), we do not think it necessary to decide, as we think complainant has shown a sufficient possession to bring himself within the statute, if that be necessary.

Complainant introduced a deed executed by Lewis to John L. Simonson bearing date the 29th day of December, 1856, one day before the levy of complainant's execution, but not acknowledged till the second day of January, 1857, the third day after the levy. In the absence of any proof of delivery, prior to the acknowledgement, we must presume that it was not delivered till after the acknowledgment, such being the usual course and practice in reference to the delivery of deeds and other instruments intended for record as this was, and the deed being incomplete for this purpose till acknowledged. The deed, therefore, being subsequent...