Dickerson v. Uhl
| Decision Date | 05 October 1888 |
| Citation | 71 Mich. 398,39 N.W. 472 |
| Court | Michigan Supreme Court |
| Parties | DICKERSON v. UHL ET AL. |
Appeal from circuit court, Kent county, in chancery; ROBERT M MONTGOMERY, Judge.
Bill by Jerome Dickerson against Francis Huggard, John Huggard, Isaac E. Messmore, Samuel B. Horne, John M. Harris, Edwin F Uhl and William E. Grove, to foreclose a mortgage executed by defendant Francis Huggard to complainant. From a decree for complainant, defendants Uhl and Grove appealed.
Edmund D. Barry, (Jacob Ferris, of counsel,) for appellant Uhl.
Wm. E. Grove, appellant, pro se.
Taggart, Walcott & Ganson, for appellee.
On the 13th of May, 1875, John Huggard gave to Francis Huggard his note due in two years from date for $3,000, with interest, and at the same time executed to Francis a mortgage on the S.E. 1/4 of section 1, and N. 1/2 of N.E. 1/4 of section 12, in township 10 N., of range 12 W., in the county of Kent, to secure the payment of said note. Afterwards, on October 19, 1875, John Huggard conveyed to Francis Huggard, in payment of about $500 of the said mortgage money, the N E. 1/4 of the N.E. 1/4 of said section 12, part of the mortgaged premises. The deed was duly acknowledged and delivered, and Francis placed it of record on the same day in the office of the register of deeds for the said county of Kent. And after that, on November, 6, 1876, John Huggard conveyed to Francis Huggard, in full payment of the balance of said mortgage money, the N. 1/2 of the S.E. 1/4 of section 1, and the S.E. 1/4 of section 1, and the N.W. 1/4 of section 12, the remainder of the said mortgaged premises. This deed was also duly acknowledged and delivered, and Francis Huggard placed it of record in the said register's office on the same day. Francis and John then about February 20, 1877, went to Cedar Springs together, and to the office of Nicholas R. Hill, a justice of the peace, and Francis had Mr. Hill make out a satisfaction piece for said mortgage, which Francis then executed and acknowledged. It was witnessed by Mr. Hill and one Barber. Francis there, in the presence of those witnesses, delivered the satisfaction piece to John, and John took it home, placed it in a box with the note and mortgage, where he kept his papers, and he has since seen it there. After the making of the $3,000 mortgage, and prior to its payment by the two deeds aforesaid given by John to Francis, and on September 17, 1875, Isaac E. Messmore attached all these lands in a suit in the Kent circuit court against John Huggard, and such proceedings were therein had that Messmore recovered a judgment against John Huggard for $700 and upward. Execution issued to the sheriff, and he levied on and sold the lands to Messmore, and in due time gave him a sheriff's deed thereof. The sheriff's deed was placed of record in the office of the register of deeds for Kent county, May 19, 1879. November 12, 1881, Francis applied to the complainant for a loan of $1,000, which he obtained, and gave his note, secured by mortgage on the lands above described, due in one year at 10 per cent. He also transferred by assignment as further security the $3,000 note and mortgage. The defendant Grove claims a lien upon the mortgaged premises by virtue of a judgment and levy against Francis Huggard in a suit begun by attachment on February 3, 1881. Defendant Uhl claims to be the owner of the mortgaged lands, except 40 acres described, as the S.W. 1/4 of the S.E. 1/4 of section 1, and as evidence of his title shows a quitclaim deed from defendant Messmore, dated September 29, 1885. Messmore's title was obtained on sale of the premises under a judgment and execution against John Huggard in suit commenced by attachment September 17, 1875. The bill in the case is filed to foreclose the first-named mortgage. The bill, after describing the $3,000 mortgage given by John Huggard to Francis Huggard, and averring that the entire principal and interest remained due thereon from date, and that the premises therein described were thereafter transferred from John Huggard to Francis Huggard, states that, by reason of intervening claims and pretended claims of different parties, said mortgage was not canceled or discharged, but still held, as in equity it ought to have been, a valid and existing claim. This is all that is said in the bill in regard to the large mortgage, except that it was assigned by Francis, together with the note, to complainant as collateral to the small mortgage. Said assignment contained a clause that it was to be reassigned when the $1,000 and interest was paid. The bill then contains the usual averments of a foreclosure bill, claiming the amount due on the small mortgage to be $1,450, and prays for a sale of the property, which is the same in both mortgages, to satisfy the decree, and, in case of deficiency, that the said John and Francis may be held personally liable for the payment of the same.
The defendants all appeared in the case, except Samuel B. Horne and Francis Huggard; and defendants Uhl Grove, John Huggard, and Messmore each filed his several answer. The bill was taken as confessed by defendants Horne and Francis Huggard. Mr. Uhl in his answer says: (1) That the $3,000 mortgage was void, because given without consideration, and with intent to defraud the creditors of John Huggard; and that Messmore was such creditor when the mortgage was made. (2) That no consideration passed from complainant for the $1,000 note and mortgage, and that no valid debt was secured thereby. (3) That complainant took the one mortgage and the assignment of the other without consideration, and with knowledge of the fraudulent purpose of the Huggards, and to assist in consummating such frauds. (4) That if any money was actually secured by the latter mortgage and the assignment of the former one, it has been fully paid. (5) That said first-mentioned mortgage was, and was intended to be, discharged by the quit-claim deeds from John to Francis. (6) That defendant Messmore acquired title to most of the mortgaged lands by sheriff's deed, as above stated, and that he has since deeded to defendant Uhl. (7) He insists that said first mortgage is wholly void as against him, and said second mortgage is of no effect as against his (Uhl's) deed of the premises; that his title is paramount and adverse to the mortgages; and asks that the bill be dismissed as against him. John Huggard, in his answer, says he made the note and mortgage for $3,000 to Francis, mentioned in the bill, but that before the 12th day of December, 1881, he paid to Francis the full amount of said note and mortgage; that he conveyed the mortgaged land to Francis, except the homestead, which was for the payment of said note and mortgage; and that Francis thereafter made, executed, acknowledged, and delivered to him a proper written discharge of the mortgage; that he knows nothing of the small mortgage. He also denies that there is the amount due upon the small mortgage claimed in the bill, and asks that the bill may be dismissed as to him. Defendant Grove answered and denied the validity of the $3,000 mortgage; admits the small mortgage, but denies that any unconditional assignment was made of the large mortgage to complainant, and does not admit the amount claimed to be due on the small mortgage; avers his interest in the premises to be as hereinbefore stated; that his interest was under a judgment rendered in favor of him and defendant Horne against the two Huggards, commenced by attachment on the 3d day of February, 1881; that said Harris assigned his interest in the judgment to him, said Grove, on the 1st day of April, 1882; that said judgment was for the sum of $150.52; that notice of the attachment was filed with the register on the 21st of February, 1882; that the complainant had notice of the defendants' judgment and attachment levy when he took the $1,000 mortgage; that said mortgage contains the following clause: ...
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