Cook v. Finkler

• Decision Date: 14 November 1860
• Citation: 9 Mich. 131
• Court: Michigan Supreme Court
• Parties: John P. Cook and another v. William Finkler and others

9 Mich. 131

John P. Cook and another v. William Finkler and others

Supreme Court of Michigan

November 14, 1860

Heard June 9, 1860

Appeal in chancery fro Hillsdale circuit.

The bill was filed December 26, 1857, to foreclose a mortgage given by Samuel Klae, February 27, 1837, payable two months thereafter; and also to redeem from a prior mortgage on the same land, given by Klae to George Ring, under which the defendant Finkler claimed. It appeared in evidence, that proceedings were had to foreclose, by advertisement, the first mentioned mortgage in 1837, and the other in 1838, but in each case they were claimed to be irregular. In July 1840, one Isaac Alden called upon Ferris, one of the complainants, and asked him if he had any claim upon the land, and Ferris replied that he had not; Alden then told Ferris he had come to inquire about complainants' mortgage; that he was negotiating a purchase with Levi Baxter, who then claimed to be owner of the land through the foreclosure of the Ring mortgage, and Ferris told him he would be perfectly safe in buying it. Alden then bought paying all the land was then worth, and took possession of the land the same year.

It also appeared in evidence that Klae, from the time complainants' mortgage fell due until his death, in 1840 was continually insolvent.

Finkler alone defended in the court below, and the court dismissed the bill.

Decree affirmed, with costs.

G. A. Knickerbocker and T. M. Cooley, for complainants:

The twenty years' equitable bar does not apply until after twenty years' non-claim while the opposite party was in possession. See 5 Johns. Ch., 545; 16 Johns. 214; 10 Johns. 416; 4 Paige 443; 2 Jac. and Wal., 235; 2 Met. 26; 8 Met. 87; 3 Sandf. Ch., 507; 2 Ves. 669; 2 Kern. 400; 22 Conn. 571; 9 Wheat. 497; 1 B. Monr., 309; 5 Wend. 297. The right to redeem in this case exists until extinguished by twenty years' possession under the prior mortgage.

Any presumption of the payment of complainants' mortgage, arising from lapse of time, is rebutted, 1st, by the attempt at a statutory foreclosure (5 Wend. 297); and, 2d, by the fact of the mortgagor's insolvency: 5 Conn. 1; 19 Ves. 196; Saxton, 685; 12 Ves. 266; 33 N. H., 569.

E. C. Hinsdale and C. I. Walker, for defendant Finkler:

As to the presumption of payment, and what is necessary to rebut it, see 5 Mich. 204; 5 Johns. Ch., 552; 3 Johns. 386; 7 Johns. 283; 10 Johns. 381; 2 Md. Ch. Dec., 210; 2 Edw. Ch., 387; 2 Dana 471; 4 Paige 441; 2 Met. 27; 1 Mich. 182; 9 Pet. 415.

OPINION

Martin Ch. J.

Upon two grounds the bill was properly dismissed in the court below: First, that of estoppel of the complainants from disputing the title of Finkler, after the assertion by Ferris to Alden, through whom Finkler derived title, that he had no claim upon the land in question; and, second, by lapse of time.

Brown the assignee of Ring, had attempted to foreclose the prior mortgage by proceedings under the statute, and the complainants had made a like attempt upon their subsequent mortgage. Whether these proceedings were regular or irregular it is unnecessary for us to determine; as these complainants purchased under their attempted foreclosure, subject to the prior mortgage. Alden, when about to purchase the property of Baxter, who had purchased from Brown, inquired of Ferris whether he had any claims upon it, and was told that he had not. This inquiry was evidently made in view of the second mortgage, and the attempted foreclosure; and the answer bound both complainants, as Alden was, as we must presume, induced to purchase by such answer. Whether the answer was made in view of the mortgage or the...