Briggs v. Hannowald

• Decision Date: 19 January 1877
• Citation: 35 Mich. 474
• Court: Michigan Supreme Court
• Parties: Emery O. Briggs v. Martin Hannowald and others

35 Mich. 474

Emery O. Briggs v. Martin Hannowald and others

Supreme Court of Michigan

January 19, 1877

Heard January 11, 1877

Appeal in Chancery from Van Buren Circuit.

Bill dismissed, and the decree affirmed, with costs.

Richards & Mills, for complainant.

Knowles & Rowland and Balch & Howard, for defendants Hannowald and Wildey.

OPINION

Campbell, J.:

Complainant seeks to foreclose a mortgage made January 15th, 1873, by Hannowald to Irwin and Wildey, to secure a note payable to them or bearer, for three hundred and seventy-six dollars and sixty-six cents, part of the purchase money of certain lands which had before been conveyed to complainant to secure a note held by him against Irwin and Charles R. Brown, who is not made a party to this suit. Complainant claims that the mortgage in controversy was delivered to him by Hannowald, to be held as security for the note against Brown and Irwin and, though not assigned by Wildey and Irwin, is held in his hands by the delivery to him of the note.

The doctrine is very well settled that an equitable assignee of a debt secured by mortgage, is entitled to have the mortgage follow the debt. If complainant took and held this note, and still holds it as owner, the mortgage follows it.

The bill, however, as well as the testimony and pleadings, shows a somewhat different condition of affairs, and the questions presented require consideration.

The bill avers, and it is not in serious controversy, that Briggs, in June, 1872, transferred to the First National Bank of Paw Paw, of which he was then, but ceased afterwards to be, cashier, the Brown and Irwin note, which was dated February 26th, 1872, in the sum of two thousand five hundred dollars, with interest at ten per cent., payable in six months. This note was reduced by various payments, and renewed at various times for the reduced amount by the makers. Afterwards notes were given in lieu of it, for amounts still further reduced, not by Brown and Irwin, but by Irwin and one Herman B. Hulse. Briggs claims to foreclose the mortgage as trustee for the bank, and not on his own behalf.

The foundation for this claim is, that the original note of two thousand five hundred dollars was given by Brown and Irwin for money borrowed to purchase lands, and that Brown, who held title, conveyed the lands to Briggs by deed, absolute in form, but in fact by way of mortgage; and the Hannowald purchase was of one of these parcels, which Briggs conveyed to Hannowald, taking back a mortgage to Irwin and Wildey. Wildey claims to own an undivided third of the lands, by sale from Brown and Irwin. Brown's name was left out of the mortgage on some reason arising out of alleged equities between the three co-tenants.

It does not appear that Briggs was to be a trustee of the lands in any other way than any mortgagee whose defeasance is separate from...