Clark v. Stilson

• Decision Date: 06 June 1877
• Citation: 36 Mich. 482
• Court: Michigan Supreme Court
• Parties: Rachel M. Clark v. Eli Stilson and others; and Eli Stilson and another v. Rachel M. Clark

36 Mich. 482

Rachel M. Clark v. Eli Stilson and others; and Eli Stilson and another v. Rachel M. Clark

Supreme Court of Michigan

June 6, 1877

Heard April 13, 1877; April 18, 1877

Appeal in Chancery from Kalamazoo Circuit.

Decree drawn as to protect the rights of Mrs. Stilson in the other lot, and she recovered her costs of both courts. As against Sebring, the complainant entitled to costs.

Russell & Wadleigh and G. M. Buck, for complainant.

Edwards & Sherwood, for defendants Stilson.

Arthur Brown, for defendant Sebring.

OPINION

Cooley, Ch. J.

This is a suit by the administrator of Amasa L. Clark to foreclose a mortgage given to him by the defendant Eli Stilson and his wife. The defendant Sebring is brought in as claiming an interest in one of the two parcels of land described in the mortgage, as subsequent incumbrancer, purchaser or otherwise.

The defendants Stilson and Sebring set up separate defenses, and the latter has filed a cross-bill. The defense of each may best be considered separately.

The mortgage was for the sum of two thousand dollars, and bore date February 8, 1869. On the 2d day of March, 1872, Stilson claims to have made an agreement with Clark, by which the latter was to proceed to foreclose his mortgage and obtain title under it, and then to take one of the two parcels of land in satisfaction, conveying the other to Mrs. Stilson. He, however, demanded two hundred and fifty dollars as a bonus for doing this, which Stilson avers he paid; and he was also to leave the land he should take in the possession of Stilson, who was to pay what in the agreement was called interest, and which we understand was in fact equal to ten per centum annually on the amount then owing from Stilson to Clark. As evidence of this agreement Stilson produced the following instrument:

"Article of agreement this 2d day of March, 1872, between Amasa L. Clark of the city of Battle Creek, Calhoun county, Mich., of the first part, and Eli Stilson of Ross, Kalamazoo county, Mich., of the second part. The said party of the first part does hereby agree that as soon as he shall receive deeds of the lots of land in Ross, Kalamazoo county, Mich., described as follows: Being the west half of the northeast quarter of section number twenty-four, in township number one south of range number nine west, containing eighty acres, and the one described as the north half of the southeast quarter of section thirteen, in town one south of range nine west, containing eighty acres, that he will convey to Emeline Stilson, by good warranty conveyance, the lot described as follows: The west half of the northeast quarter of section number twenty-four, in township number one south of range number nine west, containing eighty acres. The said party of the second part agrees to pay to the party of the first part interest on twenty-six hundred dollars at ten per cent. per annum from the time the deed is conveyed to Emeline Stilson until such time as he shall sell the lot described as follows: The north half of the south-east quarter of section thirteen in town one south of range nine west, containing eighty acres; it being mutually understood by and between said parties that the said party of the second part is to have possession of the lot last described, until such time as said party of the first part shall sell it.

"It is agreed that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators and assigns of the respective parties. In witness whereof the said parties have hereunto set their hands and seals the day and year first above mentioned.

"A. L. Clark,

"In presence of "Eli Stilson.

"James T. Alexander,

"Chauncey Webster."

Some criticism is made on the evidence produced to prove this instrument, but we think it was sufficient. The agreement is somewhat vague in some of its provisions, and does not expressly mention the mortgage; but when the position of the parties in respect to the land described in it is shown, the difficulties disappear. Clark was to perfect his title by obtaining deeds to the two parcels of land, and then convey one of them to Mrs. Stilson. Now a mortgagee obtains deeds of the lands mortgaged to him and...