Detroit Fire & Marine Ins. Co. v. Aspinall

• Decision Date: 25 April 1882
• Citation: 48 Mich. 238,12 N.W. 214
• Parties: DETROIT F. & M. INS. CO. v. ASPINALL and another.
• Court: Michigan Supreme Court

12 N.W. 214

48 Mich. 238

DETROIT F. & M. INS. CO. v. ASPINALL and another.

Supreme Court of Michigan

April 25, 1882

Where a person loaned money to an administratrix to pay off the debts allowed against the estate, which money was used as far as necessary in the payment of a moregage on the estate, and under color of authority from the probate court obtained a mortgage upon real estate, which, on an attempt to foreclose was by this court held invalid, he is entitled to be subrogated to the rights which the holders of the mortgage paid off with his money would have if not discharged on the lots still the property of the estate.

Appeal from superior court of Detroit.

Wilkinson, Post & Wilkinson, for defendants.

MARSTON J.

The complainant loaned $4,000 to the administratrix of the estate of Philip Aspinall, deceased, and under color of authority from the probate court, obtained a mortgage upon real estate which, on an attempt to foreclose, was by this court held invalid for certain reasons, set forth in the opinion in Ins. Co. v. Aspinall, 45 Mich. 332; [S.C. 7 N.W. 907.]

In the settlement of the estate of Philip Aspinall, certain claims were allowed against it, and among them one of $3,215.17 upon a bond executed by him to Caleb and Albert Ives, and secured by mortgage upon certain Lafferty farm lots. The money borrowed from the complainant was for the purpose of paying the debts allowed against the estate, and was used so far as necessary in the payment of the Ives mortgage then held by Joseph and James Aspinall. The loan was made by complainant February 25, 1867, and the Ives mortgage discharged of record March 16, 1867. The Lafferty farm lots were sold by the estate and bid in at a nominal sum by James P. Aspinall for the accommodation, use and benefit of the estate, and a part of said lots are still standing in his name.

The complainant now asks to be subrogated to the rights, which the holders of the Ives mortgage would have if not discharged, in the Lafferty farm lots still the property of the estate. The entire good faith of all the parties, in the proceedings in probate court for authority to mortgage the estate of Philip Aspinall, in supposing that such authority had been duly given in making the loan and executing the mortgage in conformity therewith and in the proper application of the proceeds of such loan in payment of the debts allowed against the estate, including the Ives...