Caruthers v. Humphrey

• Citation: 12 Mich. 270
• Court: Supreme Court of Michigan
• Decision Date: 15 April 1864
• Parties: Peter C. Caruthers v. Henry Humphrey and another

12 Mich. 270

Peter C. Caruthers v. Henry Humphrey and another

Supreme Court of Michigan

April 15, 1864

Heard January 6, 1864; January 7, 1864

Appeal in chancery from Shiawassee Circuit.

The facts, so far as they bear upon the legal questions, are stated in the opinion.

Decree of that court affirmed, with costs.

McCurdy & Raynale, for complainant, to the point that the lien of the mortgage was not discharged by the tender, cited Merritt v. Lambert, 7 Paige 344; Post v. Arnot 2 Denio 344; Kortright v. Cady, 23 Barb. 490.

Goulds & Hanchett, contra, referred to Dougherty v. Randall, 3 Mich. 581; Baker v. Pierson, 5 Mich. 456; Cameron v. Irwin, 5 Hill 272; Jackson v. Crafts, 18 Johns. 110; Kortright v Cady, 21 N. Y., 343.

OPINION

Christiancy J.:

The bill was filed to foreclose two mortgages (on the same land) executed by the defendants to William L. Coonley, both dated the 5th day of June, 1860--one for four hundred and twelve dollars, and the other for two hundred dollars--both payable one year from date, with interest at ten per cent. The former was assigned to complainant on the day of its date, and the latter on the 16th day of May, 1862, long after it became due. The mortgages were respectively accompanied by a promissory note for a like amount, payable in the same way, which notes were transferred to complainant with the respective mortgages.

The defense set up is usury, and a tender of the amount actually due, after default, and before the filing of the bill.

Before the execution of these mortgages, Coonley held a mortgages of the defendants, upon which there was due at the time of the execution of these mortgages about four hundred dollars, the last installment of which became due in January previous. In December, 1859, Coonley wrote to Humphrey, wishing to know if he could pay the mortgage, as he wished to build a house, but could not unless he should receive this money. Humphrey had previously talked with complainant about getting the money from him to pay this mortgage, and, after the receipt of this letter, went to see complainant, telling him of the receipt of the letter, and wishing to know if he could depend upon getting the money. Complainant told him he could write Coonley that the money should be forthcoming without fail. Humphrey asked him how much he was going to shave him on the money, to which complainant replied he would let him have it at ten per cent, as they were old neighbors. Humphrey wrote Coonley accordingly, that he could rely upon the money. About the time the last of this old mortgage became due (January, 1860), Humphrey again called on complainant for the money, who said he hadn't it then, but would have it in a short time. Coonley again wrote for the money, and Humphrey again went to see complainant, who still promised him the money, but had not got it yet. Coonley came out in March, but nothing could be effected, and he returned. In May, 1860, Coonley still pressing Humphrey for the money, the latter again called on complainant, telling him the facts, and that he had promised Coonley the money, relying upon the promise of complainant. Complainant then told Humphrey he could not have it; there was no use being mealy mouthed about it, saying "you know I told you I would not shave you; but Coonley wants money pretty bad, and I can shave him now." Humphrey told him he could not shave Coonley, as whatever he took from him would come directly out of him (Humphrey), and that he would not allow Coonley to be shaved a cent, and asked complainant how much shave he wanted. Complainant said one hundred dollars and interest at ten per cent. Humphrey told complainant if that was what he wanted he would execute a mortgage to him and put the one hundred dollars in it, at ten per cent interest, and let Coonley have the money. Complainant replied he could not do that, as the mortgage from Humphrey to him, with that amount of shave in it, would be good for nothing. Complainant told Humphrey he could execute the mortgage to Coonley, and Coonley could assign it to complainant, and then there could be no advantage taken of it. Humphrey then asked complainant if the money would be forthcoming under that arrangement, if he should write Coonley, to which complainant replied it would be ready any day. Humphrey then wrote Coonley to come out, and he came on the fourth day of June, the two mortgages in question being executed on the next day.

Thus far there is no substantial disagreement in the testimony; for, though complainant, in his testimony, says that "in the purchase of the mortgage" (meaning the $ 412 mortgage) he had "no negotiation with defendant Humphrey," this must be understood to refer to what took place between himself and Coonley in the actual transfer of the $ 412 mortgage, and not to the previous conversations or arrangements between himself and Humphrey in reference to the loan, and the mode of securing it, as complainant nowhere denies any one of the conversations or negotiations specifically stated by Humphrey, as above set forth. His own interest, and the theory of a purchase from Coonley, independent of any arrangement with Humphrey, which he seeks to sustain by his own testimony, would naturally have prompted a specific denial of the conversations and agreement so distinctly stated by Humphrey, if these had not been true; and the neglect of complainant even to refer to them for the purpose of admission, denial or explanation, and his resort to such vague general language, which might be true whether the transaction were a purchase or a loan, give to his testimony an air of studied evasion, and excite a suspicion that he is carefully sticking to the shell, rather than giving the substance of the transaction.

The evidence in the case leaves no doubt that the arrangement entered into on the fifth of June, 1860, was that Humphrey should execute his note, and that he had and his wife should execute their mortgage to Coonley, for the amount then due on the old mortgage, which, we think, did not exceed four hundred dollars (but which complainant obstinately insisted upon calling four hundred and twelve dollars)--that this mortgage should be made payable in one year, with ten per cent interest, that Coonley should assign this mortgage to complainant (with the note), for which complainant should advance and pay three hundred dollars. As this would leave a balance of one hundred dollars due to Coonley on account of the old mortgage and as Humphrey was in pressing need of seventy dollars, it was arranged between them that Coonley should let Humphrey have seventy dollars of the three hundred to be received from complainant, and that Humphrey and wife should execute to Coonley a further mortgage upon the same property for two hundred dollars,...