Colman v. Post
| Decision Date | 21 July 1862 |
| Citation | 10 Mich. 422 |
| Court | Michigan Supreme Court |
| Parties | Norman J. Colman v. George Post and others |
Heard May 30, 1862
Appeal in Chancery from Kent Circuit.
Decree dismissing the bill affirmed with costs.
H. B Brown and James Miller, for complainant.
Withey & Gray, for defendants.
Christiancy, J. did not sit in this case.
Manning J.:
The bill is to foreclose a mortgage executed by George Post and wife to Samuel Post, and assigned by Samuel Post, with another mortgage executed to him by Benedict Eldred, to Charles D. Colman, as security for Colman becoming bail for one William Post, or whoever he might get to become such bail. Colman procured Thomas M. Town to become bail, and assigned the mortgage to Town to indemnify him. The recognizance of bail, which was $ 500, was forfeited, but the recognizance and forfeiture were afterwards discharged on the payment of $ 250 by the defendant Christopher Post. Both mortgages were executed to Samuel Post to enable him to procure bail for William Post. And after the recognizance of bail was discharged, the two mortgages were assigned by Town, at the request of Charles D. Colman, to Norman J. Colman the complainant, who insists he is entitled to a decree of foreclosure on two grounds: First, that the parol evidence by which the foregoing facts are made to appear must be rejected, as it goes to contradict the face of the mortgage and assignments, which are absolute in terms. Second, that Town was a bona fide holder of the promissory note secured by the mortgage, which note is payable to bearer, and was assigned to Town before it became due, by Charles D. Colman.
The consideration of a contract, as a general rule to which there are some exceptions on grounds of public policy, may always be inquired into. Neither law nor equity, except in the cases just mentioned, will enforce a promise made without consideration, or where the consideration has wholly failed. There can be no doubt, if the present bill was filed by Samuel Post, that it would be competent for George Post to show by parol evidence that the mortgage was given to Samuel Post to indemnify him for becoming bail for William Post, and that he had not become such bail, or having become bail that he had been discharged of his liability without being damnified. And if this would be the case as to him, it is so as to his assignee, or the assignee of such assignee, who takes the mortgage subject to all equities...
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