Brigham v. Brown
| Decision Date | 16 June 1880 |
| Citation | 44 Mich. 59,6 N.W. 97 |
| Court | Michigan Supreme Court |
| Parties | BRIGHAM and another v. BROWN and another. |
A man may give a voluntary mortgage if he choses, and it will be good except as to those who are or might be defrauded by it. But the fact that a mortgage is given without consideration may have an important bearing on any disputed question concerning its delivery or recording.
A debtor gave a mortgage for the debt, the bona fides of which were not disputed, and it was at once placed on record. Subsequently it was found that another party had a mortgage from the same mortgagor on the same land, purporting to be given and recorded first. This mortgage had no debt to support it, unless it was one owing to a firm of which the mortgagee was a member, and for which other mortgages, for more than its amount, were in existence. The register of deeds testified that it was left with him by the mortgagor with directions not to place it upon record until further directions were given, and that he never received any such directions, but his clerk recorded it without orders. Held that the spreading it upon the record book, under such circumstances, was not a recording which entitled it to priority.
When a paper is left with the register, with the understanding that it is not to go upon record until further directions, the register, when he receives such directions, must record it as of that time, and not as of the time when it was left with him.
Where a mortgage is given, manifestly, as a cover for the benefit of the mortgagor, and the latter is sent with it to the registry, where he gives directions for leaving it off the record, the mortgagee will be bound by these directions, and will not be at liberty to rely, as against them, upon a false certificate of recording which he obtains.
Appeal from Newaygo.
George Luton and Blair, Kingsley & Kleinhaus, for defendants.
The bill in this case was filed to foreclose a mortgage given February 15, 1878, by defendant Brown to complainants, and recorded on the day of its date. No question is made of the bona fides of this mortgage, and the case turns upon a question of priority between the mortgage of complainants and one given by Brown to defendant Rindge, of the same land, for $1,500. The Rindge mortgage bears date December 11, 1877, and purports to have been recorded January 1, 1878. It was shown by complainants, however, that at the time of the taking of their mortgage they applied to the register of deeds for an examination of the title to the land, and he reported to them it was unencumbered. On the other hand, Rindge testified that Brown made the mortgage and brought it to him fully executed in December, and that he took it, but then handed it back to Brown with instructions to put it on record; that on January 19, 1878, he called at the register's office for it and was told it was not yet recorded; that he called again in March following, when he found that...
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