Bristol v. Braidwood
| Decision Date | 21 October 1873 |
| Citation | 28 Mich. 191 |
| Court | Michigan Supreme Court |
| Parties | Edgar Bristol v. John Braidwood |
Heard October 14, 1873; October 15, 1873
Error to Lapeer Circuit.
Replevin.Defendant brings error.Reversed.
Judgment reversed, with costs, and a new trial awarded.
Gaskill & Geer, for plaintiff in error.
J. M Wattles and M. E. Crofoot, for defendant in error.
This was an action in replevin brought by Braidwood against Bristol in the circuit court for the county of Lapeer, for a pair of colts which the former had sold or traded to the latter for forty dollars in cash and a mortgage and accompanying note of one Henderson, given not long before to one Goetchius, for four hundred dollars at ten per cent. interest, upon which two hundred and fifty dollars had been paid and endorsed.This mortgage the defendant(below) represented to the plaintiff to be "as good as the wheat,""as good as the money to any one who did not want to use the money; for," said he, "it is drawing ten per cent. interest."And being asked by plaintiff if there was any mortgage ahead of this, he replied that there was not, as far as he knew.
The plaintiff, about four days after the trade, claiming to have ascertained that there was a prior mortgage upon the land, executed by one Augustus Hilliker to one James Lee for some fourteen hundred dollars, which had been foreclosed and a deed given by the sheriff, the right to redeem from which would expire in about twenty-three days, and claiming to have been defrauded by the representations of the defendant, tendered back to him the mortgage and the forty dollars (which the defendant refused to receive), and demanded his colts, thus attempting to rescind the contract.
If the representations complained of were such as to entitle the plaintiff to rescind the contract and bring replevin, on the ground that they were false and fraudulent in reference to a prior incumbrance, it is very clear that this could be so only because such prior incumbrance affected the title upon which the Goetchius mortgage (transferred to plaintiff) depended, and because its enforcement might defeat the latter in whole or in part.For, though such prior mortgage might describe the same land, yet, if executed by some one having no connection with the real title, but outside of the chain of title, it could in no way defeat or affect the Goetchius mortgage or impair its security.
It was therefore incumbent upon the plaintiff not only to show, first, a prior mortgage describing the land, but, second, that it was connected with, and affected the title in such a manner as to impair the value of the Goetchius mortgage.All he did was to prove by the record the existence of a prior mortgage describing this land, executed by Augustus Hilliker to James Lee, and that this mortgage had been foreclosed, and a sheriff's deed executed to one Baldwin Copeland.He entirely failed, and did not even attempt, to show that Hilliker, who executed this prior mortgage, ever owned the land, or had any connection with the title.
Goetchius, however, was sworn for the defense, and gave some testimony tending to show that he, when he took his mortgage from Henderson, and afterwards, recognized the existence of a prior mortgage affecting the value of his security; and it might have been a question whether this evidence might not have warranted a jury in finding that the prior mortgage did affect the title and impair the security of the Goetchius mortgage.But this cannot not avail the plaintiff below upon this record, since the court, in denying the request of the defendant for a contrary charge, instructed the jury that the mere proof of the existence of the prior mortgage describing the same land, and the sheriff's deed on foreclosure, made a prima facie case that there was a prior incumbrance upon the land, and threw upon the defendant the burden of proving that it did not affect the title.This we think was clearly erroneous.The burden of proof was upon the plaintiff throughout, to show that it did affect the title, and not upon the defendant to prove that it did not.
This disposes of the case; but as a new trial is to be awarded, it is proper to notice another feature of the case, which will be likely to appear upon the new trial substantially as it does here; as the plaintiff and defen...
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