Dutton v. Ives

• Decision Date: 14 October 1858
• Citation: 5 Mich. 515
• Court: Michigan Supreme Court
• Parties: Ormond Dutton v. Warren Ives and others

5 Mich. 515

Ormond Dutton v. Warren Ives and others

Supreme Court of Michigan

October 14, 1858

Heard July 14, 1858 [Syllabus Material] [Syllabus Material]

Appeal from Clinton Circuit in chancery.

The bill in this case was filed against Warren Ives, William Walker, and Cyllania Walker, to foreclose a mortgage executed by the Walkers to Morris S. Allen, bearing date January 14th 1854, recorded in the office of the register of deeds, for Clinton county, February 6th, 1854, and assigned to the complainant, December 29th, 1855, by one Joseph Hollister who was the assignee of the said Allen; which mortgage was given to secure the payment of a negotiable note of $ 650, in annual installments running through seven years. The bill contains the usual prayer for an account, foreclosure and sale, etc. It was taken as confessed by the Walkers, and the defendant Ives appeared and answered.

The answer admits all the facts alleged in the bill, and sets up a defense that the said note and mortgage were given to secure a balance of purchase money of the premises described in the mortgage, which were sold and conveyed by Allen to the defendant William Walker, by warranty deed, at the same date of the said mortgage; that at the time of said conveyance, the premises were incumbered by a mortgage executed by one Cobb to William W. Forsyth and Douglass Forsyth, dated July 10th, 1849, and recorded December 20th, 1849, to secure the payment of $ 284.46, in four installments, the last payable within four years thereafter; and that, as a part of the transaction of the said sale and purchase, the said Allen executed and delivered to said William Walker an agreement in writing, that, in consideration of the premises, he (Allen) would pay off and discharge the last mentioned incumbrance without any trouble or expense to said Walker; and also that the first installments of the said mortgage from the Walkers to Allen, if paid to the said Allen, should be by him applied to the payment of the said Forsyth mortgage; or, if said Walker should see fit, himself, to pay said Forsyth mortgage, then the amount so paid by him should so far apply as a payment upon the said mortgage from Walker to Allen; which agreement bore date, and was duly acknowledged, January 14th, 1854, and was recorded in the office of register of deeds for Clinton county, in the record of deeds.

The answer further sets up that on the 9th of February, 1854, the said Walkers duly conveyed the said premises, and on the 15th of March, 1856, duly assigned the said agreement to one Mortimer Ives; that the said Allen having neglected to pay the said Forsyth mortgage, or any part of it, the said Mortimer Ives, on the 12th of February, 1856, purchased and had duly assigned to him the said Forsyth mortgage, and the bond accompanying the same, and paid therefor the sum of $ 325.54, which was the amount then due upon the same; that on the 25th of December, 1854, the said Mortimer Ives paid upon the said note and mortgage from the Walkers to Allen the sum of $ 142.65; that the said Mortimer Ives has since deceased, and that defendant Warren Ives, is the father and sole heir of said Mortimer Ives, and is now in possession of the premises in question.

And the defendant Ives, in his answer, claims to have the sum, so paid by Mortimer Ives for the purchase of the Forsyth mortgage, applied as a payment upon the mortgage from the Walkers to Allen; and that, if so applied, then there was nothing due upon the last mentioned mortgage at the time of filing the said bill.

There was no replication, and the cause was heard upon the bill and answer as to the defendant Ives, and pro confesso as to the defendants Walker.

Some of the facts above stated are not contained in the answer, but were supplied at the hearing, by stipulation in writing, which is made a part of the record.

The Circuit Court refused to allow to the defendant Ives the sum paid for the Forsyth mortgage, and referred the case to a Circuit Court Commissioner, to report the amount due and to become due upon the said Walker mortgage; and on the coming in of his report, final decree was entered for payment, sale, etc.

The defendant Ives appealed to this court.

Decree of the court affirmed, with costs.

J. W. & E. Longyear, for complainant:

1. The agreement between Allen and Walker not being by law entitled to record, the record of it is no notice to any one: 6 McLean 15; 3 Ibid. 63; 12 S. & M., 261; 9 Ibid. 201, Walk Ch 182; 5 Mason 244; 1 Strob. Eq., 393. A subsequent purchaser...