Densmore v. Savage
| Decision Date | 30 June 1896 |
| Citation | 110 Mich. 27,67 N.W. 1103 |
| Court | Michigan Supreme Court |
| Parties | DENSMORE v. SAVAGE ET AL. |
Appeal from circuit court, Antrim county; Roscoe L. Corbett, Judge.
Bill by Francis E. Densmore against Fanny J. Savage and others. From a decree sustaining a demurrer to and dismissing the bill complainant appeals. Reversed.
Lawton T. Hemans, for appellant.
Nelson C. Weter, for appellees.
Complainant filed a bill, in which he alleged that in 1892 Fanny J Savage made a real-estate mortgage to the father of complainant for $3,000, to secure a note made by herself and Eugene R. Savage, which mortgage was properly executed and recorded. That on January 11, 1895, the other defendants sued out a writ of attachment against the goods and chattels of Fanny J. Savage, and upon the same day caused a levy to be made upon the same lands described in the foregoing mortgage. The bill also alleges that on March 22 1895, complainant's father had been in declining health and was unable to attend to or care for his business affairs; that he had made a final disposition of his estate by will, in which he bequeathed the mortgage herein and other mortgages to complainant; that he had informed complainant of this disposition of this mortgage. The bill also alleges that complainant and his father regarded the amount due on the mortgage, March 22, 1895, as being in excess of the value of the mortgaged premises, and that an arrangement was made between complainant, his father, and Fanny J. Savage by which Fanny J. Savage made a new mortgage running to the complainant, which was to take the place of the mortgage made in 1892, for which mortgage the father of complainant made a discharge. The discharge and new mortgage were neither of them to have any force or effect, or to be put upon record, in case any change of the title of the premises or any lien or incumbrance had been put upon them since the mortgage of 1892 was made. The bill further alleges that the papers were forwarded to the register of deeds with instructions to examine the records, and, if no change had been made to the title of the premises, or any liens or incumbrances put upon them, to record the discharge and the new mortgage. The bill alleges that when the new mortgage was made neither the complainant nor his father had any knowledge of the lien claimed by defendants White, White, and White, and that an examination of the records by the register of deeds, March 29th, did not show any change in the title to the premises, and that the discharge of the mortgage and the new mortgages were then put upon record. The bill further alleges that at the time of this examination by the register of deeds no certified copy of the writ of attachment was in the register's office, and that it was afterwards fraudulently transferred from the office of the county clerk to the office of the register of deeds, and the record was fraudulently made so as to show the record of attachment to be of a date prior to the recording of complainant's mortgage. There are other allegations in the bill, which it will not be necessary to state here further than to say it is alleged that the father of complainant afterwards died, leaving a last will and testament, bequesting to the complainant this and other mortgages in question, which will was probated, and that all of said defendants claim to have interests in the premises. ...
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