Byles v. Kellogg

• Decision Date: 20 October 1887
• Citation: 67 Mich. 318,34 N.W. 671
• Court: Michigan Supreme Court
• Parties: BYLES and another, Assignees, etc., v. KELLOGG.

34 N.W. 671

67 Mich. 318

BYLES and another, Assignees, etc., v. KELLOGG.

Supreme Court of Michigan

October 20, 1887

CAMPBELL C.J.

Complainants who, as assignees of Kellogg, Sawyer & Co., were also assignees of Joseph E. Kellogg and Albert E. Sawyer, two of said firm, of their separate property to pay their own and firm debts, filed a bill to foreclose a mortgage on defendant's home property acquired under the following circumstances: In October, 1874, the property was owned by Kellogg & Sawyer, and they mortgaged it to Mary A. Trowbridge for $2,500. In December, 1874, the property was conveyed to defendant, who is the wife of Joseph E Kellogg, as a gift from her husband, by deed executed by him and Sawyer. This deed, not having been placed on record, was subsequently taken by Kellogg, and lines of defacement drawn across it and handed back to Sawyer, without Mrs Kellogg's knowledge. This deed has figured in some other cases before us, and we have no doubt it had been legally delivered and was operative. It contains a covenant of seizin not subject to any exception, a covenant that the land was only incumbered by this mortgage, a general covenant of warranty against all lawful claims whatever, and a recital that this mortgage was held against the property. In February, 1883, Kellogg & Sawyer made a quitclaim of the premises to Mr. Kellogg, recited to be subject to this mortgage. During all this interval the premises, which are Mr. Kellogg's homestead, and which all parties meant should be such, have been occupied and improved as such, and are valuable. The consideration expressed in the warranty deed is $8,000, which seems to have been about the unincumbered value of the land.

This property was not covered by the assignment, and we find no reason in the record why whatever title was meant to be conveyed to Mr. Kellogg was not valid. And so far as Kellogg & Sawyer's own liabilities were concerned, their estates were perfectly solvent. And we have no doubt the deed of 1874 continued effectual, and needed no confirmation, and could not be changed by the quitclaim of 1883. The mortgage, as between Kellogg and his partner, Sawyer, had been assumed by Kellogg. In September, 1886, Mrs. Trowbridge presented her claim for the mortgage debt against Kellogg's separate estate in the hands of the assignees, and the matter being submitted to the circuit court of Kalamazoo county, it was determined that Mrs....