Brown v. Phillips

• Decision Date: 28 January 1879
• Citation: 40 Mich. 264
• Court: Michigan Supreme Court
• Parties: Thomas S. Brown et al. v. James Phillips

40 Mich. 264

Thomas S. Brown et al. v. James Phillips

Supreme Court of Michigan

January 28, 1879

Submitted January 10, 1879

Error to St. Joseph. Submitted January 10. Decided January 28.

No error found and judgment affirmed with costs.

John B Shipman for plaintiff in error, as to proof of publication cited Hill v. Hoover, 5 Wis. 354, 371; Gillett v. Needham, 37 Mich. 143. A mortgager's after-acquired title inures to the benefit of the mortgagee Tefft v. Munson, 63 Barb. 31; Hitchcock v. Fortier, 65 Ill. 239; King v. Gilson, 32 Ill. 348; Gochenour v. Mowry, 33 Ill. 331; Jones v. King, 25 Ill. 383; Wark v. Willard, 13 N.H. 389; Massey v. Papin, 24 How. 362; Boisclair v. Jones, 36 Ga. 499; Humphrey v. Hurd, 29 Mich. 44; Barber v. Harris, 15 Wend. 616; Stevens v. Stevens, 16 Johns. 110; Farmers etc. Bank v. Bronson, 14 Mich. 361.

H. H. Riley for defendant in error. A deed and purchase money mortgage relating to the same subject matter, will be construed together, Jackson v. Dunsbagh, 1 Johns. Cas., 92; Stow v. Tifft, 15 Johns. 458; Jackson v. McKenny, 3 Wend. 233; Hull v. Adams, 1 Hill 601; Cornell v. Todd, 2 Den. 130; Bronson v. Green, Walk. Ch., 59; Johnson v. Moore, 28 Mich. 3; one who has conveyed land cannot afterward claim it in opposition to his deed, Jackson v. Ayers, 14 Johns. 224; a warranty of right, title and interest in land, or a quit-claim, is not an estoppel to a claim and interest afterward acquired by the grantor, Bigelow on Estoppel, 335; Blanchard v. Brooks, 12 Pick. 47; Comstock v. Smith, 13 Pick. 116; McBride v. Greenwood, 11 Ga. 379; Brown v. Jackson, 3 Wheat. 149.

Graves, J. The other Justices concurred.

OPINION

Graves, J.

Phillips brought ejectment for the undivided three-eighths of the north half of the west half of the northwest quarter of section sixteen, in the township of Sturgis, in the county of St. Joseph, and was allowed to recover, and the defendants below brought error. The material facts are not disputed.

In 1850 Archibald Brown died seized of the whole forty acres and intestate. He left a widow, Jane Brown, who is one of the parties, and eight heirs at law, namely, Harriet Chase, Thomas S. Brown, Emeline A. Brown, Sarah E. Brown, Caroline Wilson, Abigail Davis, Jemima J. Munger, and Mary Phillips, wife of defendant in error. Of these heirs Thomas S. Brown, Sarah E. Brown, Emeline A. Brown and Caroline Wilson are parties. The forty acres therefore subject to the widow's dower descended to these eight heirs, each one being vested with a distinct undivided one-eighth part.

December 14th, 1867, Harriet Chase conveyed her share to Thomas S. Brown and he thus became owner of two shares. February 17, 1868, the widow, Thomas S. Brown, Sarah E. Brown and Caroline Wilson quit-claimed their interests to Wier L. Drake. He thereby acquired the widow's interest in the forty acres, and the five shares or undivided eighth parts represented by the heirs making the grant. Three shares or undivided eighth parts still remained in the other heirs, Abigail Davis, Jemima J. Munger and Mary Phillips, wife of defendant in error.

To secure the payment of the purchase price of the widow's interest and the shares granted to him by this conveyance, Drake gave his mortgage for $ 950. It will be noticed that he acquired nothing more than the five shares and the interest of the widow and held nothing more which he could encumber. The mortgage, however, was made in terms upon the entire estate in the whole forty acres, and was drawn as running not only to Drake's grantors, but to Jemima J. Munger likewise. The case explains that she was put in as mortgagee without her knowledge or consent and in the expectation at the time that she would unite in the deed made by plaintiffs in error. She never acceded to the contract. It is probable that the wording of the mortgage as a pledge of the entire estate in the whole forty acres may also be accounted for by supposing the parties were contemplating the transfer of the other shares, but this is not important.

January 2d, 1869, Abigail Davis, Jemima J. Munger and Mrs. Phillips quit-claimed their shares to Drake. He then stood as owner of the equity of redemption of the undivided parts represented by the widow's interest and by the five shares conveyed to him February 17, 1868, and owner of the three shares last conveyed.

In this state of things he became indebted to defendant in error for $ 400. The debt was secured by note signed by himself and one John Morrison, and by his mortgage on the whole forty acres in question and also on the adjoining south forty acres. This mortgage was dated January 13, 1869, and hence some days later than the deed. The latter was in fact given at the same time and the transactions were connected. It is well to observe in passing that Drake was at this time holder of the entire legal title and in a situation to mortgage the whole forty acres. The previous mortgage, which only attached to particular undivided shares, was no hindrance.

April 13, 1870, Drake and wife conveyed the equity of redemption in the entire forty acres in question to Laura A. Perry, and she held it until January 16, 1871, when she quit-claimed to Mrs. Drake.

In the meantime, and on December 20th, 1870, the sheriff in executing foreclosure proceedings under the statute on the first mortgage, being that given for $ 950 to plaintiffs in error, sold to the latter the entire forty acres. The sale did not become absolute until December, 1871.

February 14, 1872, defendant in error filed a bill to foreclose his mortgage for $ 400. He joined as defendants Drake and wife and John Morrison. Morrison was personally served, but Drake and wife were proceeded against as non-residents. The bill was taken as confessed, and $ 590.89 reported due. The bill contained the same description as the mortgage and made no allusion to partial or undivided interests, and the decree followed the bill. This is not important. No question of jurisdiction arises in regard to the right to maintain the bill. No one claims there was no subject matter left, even if some portion of the interests mortgaged had been taken away by regular foreclosure of the prior mortgage.

The commissioner advertised a sale pursuant to the decree, and failed to suggest that only an undivided three-eighths of the forty acres would be offered. If this was improper, as I think, it was still an irregularity at most to be complained of in the same case, and not a defect of jurisdiction which may be objected to in a collateral proceeding.

The sale was confined to three undivided eighth parts of the forty acres and the whole of the forty acres lying south, and defendant in error became purchaser of both. The consideration for the former was $ 25, and that for the latter $ 65. July 18, 1873, the commissioner made conveyance and reported the sale and a deficiency of $ 546.79, and the proceedings were confirmed. When the proceedings were offered in evidence, their introduction was objected to on several grounds. Some of them have been sufficiently noticed already.

The chief objection is aimed at the proof of publication of the order for the absent defendants to appear.

The proof made was by affidavit in these terms, after giving the title of the cause:

"St. Joseph county -- ss: Lee Gray Hull, a printer in the office of the Constantine Weekly Mercury, a public newspaper printed, published and circulated in the county of St. Joseph and State of Michigan, being duly sworn says that the annexed notice, chancery order, has been published in said newspaper at least once in each week for six successive weeks; that the first publication of such notice in said newspaper was on the 12th day of December, A.D. 1872, and the last publication of the same was on the 30th day of January, A.D. 1873."

Then followed the affiant's signature and a jurat in due form.

The argument against this affidavit assumes that the statute has exclusively prescribed what shall be proof...