Desot v. Ross

• Decision Date: 10 March 1893
• Citation: 95 Mich. 81,54 N.W. 694
• Court: Michigan Supreme Court
• Parties: DESOT v. ROSS.

54 N.W. 694

95 Mich. 81

DESOT v. ROSS.

Supreme Court of Michigan

March 10, 1893

Appeal from circuit court, Macomb county, in chancery; Arthur L Canfield, Judge.

Bill by John Desot against Octavia Ross to declare a mortgage discharged on payment of a sum tendered to defendant. There was judgment for plaintiff, and defendant appeals. Affirmed.

William B. Jackson, for appellant.

Lungerhausen & Erskine, for appellee.

MONTGOMERY J.

Complainant is the father of the defendant. In March, 1881 complainant mortgaged certain premises owned and occupied by him to Oliver Chapaton for $1,022. This mortgage was assigned to defendant in 1888. December 26, 1891, complainant tendered to the defendant $1,341.12, and demanded a discharge of the mortgage. The defendant refused to discharge the mortgage unless she was repaid the further sum of $150 and interest which she had advanced to complainant to pay the installments of interest falling due upon the same mortgage before she became the purchaser of it. The bill prays a discharge of the mortgage on payment of the amount of the tender. It appears by the testimony that the defendant in June, 1882, and in February, 1884, advanced in the aggregate $150 to pay the installments of interest before referred to, taking an agreement in writing in the following form: "$80. One day after date we promise to pay Octavia Ross or bearer eighty dollars, with use, value received. The design of this paper is to secure payment of the above sum of money, it being for money paid by said Octavia Ross to Oliver Chapaton for interest due on a real-estate mortgage given by us to him. Mount Clemens, June 17, 1882." Signed by complainant and his wife. The circuit judge found as a fact that there was no independent agreement that the defendant was to be subrogated to the lien of the mortgage to the amount of these payments, and this finding is fully justified by the proofs. Indeed, it is not seriously contended that there was such an agreement, but it is strenuously insisted that the written instrument itself is sufficient evidence of an intent that the defendant should retain a lien on the land for the money advanced. We think the instrument cannot be construed as creating a lien on specific property. It amounts to no more than a promise to pay the sum advanced, with interest. It is true it recites that the paper is to secure the payment of the amount, and it is also recited that the money was paid on the mortgage in question but the recital cannot perform the office of an agreement that the mortgage shall remain a security for the money. No such relation of defendant...