Brown v. Avery

• Decision Date: 21 February 1899
• Court: Michigan Supreme Court
• Parties: BROWN ET AL. v. AVERY ET AL.

78 N.W. 331

119 Mich. 384

BROWN ET AL. v. AVERY ET AL.

Supreme Court of Michigan

February 21, 1899

Appeal from circuit court, Genesee county, in chancery; Charles H Wisner, Judge.

Bill by Charles S. Brown and David Richards, executors of Benjamin Cotharin, deceased, against Charles R. Avery and others. From a decree for complainants, defendants appeal. Affirmed.

Black & Brown, for appellants.

James H. McFarlan, for appellees.

HOOKER J.

Robert E. Wade and wife, Belle F. Wade, held the original title to the land in question. On September 16, 1890, they made a mortgage thereon to Cotharin, complainants' testator. On April 28, 1896, Robert E. Wade and Debbie J. Avery executed a contract, by the terms of which the latter and her husband agreed to purchase, and the former and his wife to sell, the premises for the sum of $600, and to pay all taxes that should be thereafter assessed. It was agreed that Avery should have immediate possession of the premises. Mrs. Wade did not sign the contract, though she was described in it as a party to it, and it is claimed that it was made with her assent, which seems undisputed. On the same day Wade and wife executed a warranty deed of the premises to the Averys, which was held by Theodore J. George in escrow, to be delivered on payment of $200, George having negotiated the sale. This was subject to the mortgage given to Cotharin, which was according to the arrangement between the parties. He extended the mortgage five years, at the request of the Averys, who took immediate possession of the premises, and have occupied them since. December, 1896, Middleton bought a tax title upon the premises, the same having been bid in by the state for the tax of 1893, and on December 10, 1896, the Averys were informed of his purchase. In April, 1897, a deed was made from the auditor general to Middleton, who on May 14, 1897 conveyed his title to the Averys for $25. Subsequently Avery and wife mortgaged the premises to Osband. Cotharin's executors filed the bill in this cause to foreclose the mortgage held by them, making the Averys and Osband parties. A decree was rendered for the complainants and the defendants have appealed.

It was shown that none of the parties to the contract knew of the unpaid tax of 1893 until after Middleton bought it, and that Mrs. Avery called upon Cotharin, when she bought the place for an abstract, having learned that he had one. He said that he had it, but did not have time to get it; that it was all right. Subsequently she called to get him to extend the mortgage, which he did. She then said she was going to the court house, to see if there was anything back on the place, and he said there was not, and she believed him. He said the taxes were all paid, and he would guaranty the title absolute, with the exception of the mortgage. The papers were drawn the next day. Before Middleton took his deed he informed the Averys that he had bought the tax title, and that it would cut off their interest. The defendants contend: First, that they are not proper parties, inasmuch as by a purchase of the tax title they held a distinct, adverse, and paramount title to that of the mortgagor; second, that the Averys succeeded to Middleton's title, which was absolute, and, as they did not agree to pay the back tax, they were not estopped from purchasing the outstanding tax title, which had extinguished the former title held by Wade; third, that the representations and guaranties of Cotharin that there were no liens against the property preclude complainants from claiming under Wade's title through the mortgage.

The mortgage given by Wade to Cotharin contains covenants of warranty, and an undertaking to pay all taxes. The defendants Avery purchased the equity of redemption, and the...