Burns v. Berry

Decision Date29 November 1879
Citation42 Mich. 176,3 N.W. 924
CourtMichigan Supreme Court
PartiesJAMES BURNS v. SAMUEL M. BERRY and others.

A mortgage was given by T. in 1872, which was not recorded until 1876. He died in 1874. No administration proceedings were had, but some of the heirs quitclaimed to another, who gave a mortgage back for the amount to be paid therefor which was recorded and assigned to one B. before the recording of the mortgage given by the ancestor, B. taking the assignment without notice of prior mortgage. Held, that the heirs took no greater estate than their ancestor had; but as to B., the assignee of the mortgage first recorded, such mortgage would take precedence as between the liens created by the mortgages, though, by proper administration proceedings, the mortgagee in the first mortgage might have the property sold and his claim paid, as a claim against the estate of a deceased person, without regard to such second mortgage.

Appeal from Cass.

Howell & Carr, for complainant.

F.J Atwell and Breese & Stearns, for defendants.


On the ninth day of November, 1872, Edmund Thorp, being the owner in fee of certain premises, executed and delivered to James Burns a mortgage thereon to secure the payment of a promissory note, of even date therewith, given by him to said Burns. This mortgage was not recorded until the twenty-ninth day of December, 1876. On the twenty-eighth day of May, 1874 Edmund Thorp died intestate, leaving as his heirs at law three sons, Aaron, Almer and Eldridge. No letters of administration were taken out, and the estate of said deceased has never been administered upon. On the first day of March, 1875, Aaron and Eldridge conveyed by quitclaim deed all of said mortgaged premises to their brother Almer, and on the same day Almer mortgaged the same premises to Aaron to secure the payment of $3,643.56, this being Aaron's share as one of the heirs. This deed and mortgage was duly recorded the same month, and on the third day of May, 1875, Aaron assigned this mortgage to Samuel Berry, the said assignment having been recorded the same day.

Burns filed his bill to foreclose the mortgage given him, setting forth all the above facts, and charging that each of said heirs, and that Berry at the time of taking said assignment had full notice of his note and mortgage, and of the non-payment thereof.

Berry claims to have purchased in good faith, without notice, and to have paid full consideration for the mortgage assigned to him, and the proofs fully sustain him.

It also appears that Edmund Thorp, at the time of his decease, left personal property sufficient to pay all his debts, including this Burns mortgage, but which has since been disposed of and that he also left unencumbered real estate, other than that in question, of sufficient value to pay all his debts.

What, then, are the respective rights of Burns and Berry upon the facts stated?

The heirs could take no other or better title to the real estate than their father had at the time of his decease. They therefore took it subject to the Burns mortgage, whether they had notice thereof or not, and the conveyances made to each other would...

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2 cases
  • Lyle v. Palmer
    • United States
    • Michigan Supreme Court
    • November 29, 1879
  • Pratt v. Pratt
    • United States
    • Michigan Supreme Court
    • November 29, 1879

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