Eaton v. Eaton

• Citation: 36 N.W. 50,68 Mich. 158
• Court: Supreme Court of Michigan
• Decision Date: 12 January 1888
• Parties: EATON ET AL. v. EATON ET AL.

36 N.W. 50

68 Mich. 158

EATON ET AL. v. EATON ET AL.

Supreme Court of Michigan

January 12, 1888

Appeal from superior court of Detroit, in chancery; WILLIAM JENNISON, Judge.

Bill to satisfy of record certain mortgages, and for injunction, by Ellen V. Eaton et al., appellees, against Alonzo Eaton et al., appellants.

Darwin C. Griffen, (J. Willard Babbit, of counsel,) for appellants.

Griffin & Warner, for appellees.

SHERWOOD J.

This case comes before us from the superior court of the city of Detroit. The complainant Ellen V. Eaton, is the wife of the defendant Alonzo Eaton, whom she married on the twentieth day of November, 1880 and who abandoned her on the eighteenth of June, 1884, and defendants Caleb and Hiram are his brothers. The defendant Alonzo Eaton, at the time of his marriage with the complainant Ellen V. Eaton, owned city lot No. 9, in subdivision of Park Lot 65, on the south side of Parsons street in the city of Detroit. At the time of the marriage they went to reside on the Parsons street property, and Mrs Eaton has continued to reside there ever since. On the twenty-sixth day of February, 1884, Ellen V. Eaton held a claim against her husband for moneys advanced to him after her marriage, to the amount of $3,322.58. On or about the date last stated she assigned and transferred her interest in this claim to said complainant Hunt, giving him full power to sue for and collect the same. This assignment was made to said Hunt for the use and benefit of Mrs. Eaton, the assignor, and as trustee for her. Suit was subsequently brought against Alonzo Eaton upon this claim in the superior court of Detroit, by said Hunt, and on the twentieth day of June, 1884, judgment was rendered therein in favor of Hunt for $3,361.48, which judgment was subsequently affirmed in this court. See Hunt v. Eaton, 55 Mich. 362, 21 N.W. 429. On the first day of July, 1884, execution upon said judgment was levied upon said lot No. 9, on Parsons street. At the time of this levy there were two mortgages upon the lot, as the complainant was informed by her husband,-one made September 3, 1877, and made to Mary L. Eaton; the other dated February 4, 1878, and made to Fannie B. Reed. Both of these mortgages were subsequently assigned to Hiram Eaton, another brother of Alonzo. Hiram subsequently instituted foreclosure proceedings upon these mortgages in the circuit court for the county of Wayne, and a decree was rendered on or about the twenty-sixth day of February, 1885, against Alonzo Eaton and Ellen V. Eaton, wherein it was adjudged and determined that there was due upon the Eaton mortgage at the date of the decree the sum of $1,731.66, and interest thereon from December 26, 1884; and that there was due the complainant upon the mortgage dated February 4, 1878, the sum of $420; and that there was to grow due upon said last-mentioned mortgage the sum of $20 per month from February 20, 1885, during the life-time of said Fannie B. Reed, for each month that the said Fannie B. Reed preferred to live apart from the home of said Alonzo Eaton; and that there was also due at the date thereof, for amount paid for taxes to protect the lien of said mortgage, the sum of $315.62, and interest thereon at 7 per cent. from December 26, 1884, and that, in default of the payment of said amounts on or before the tenth day of March, 1885, the said property was directed to be sold at public auction by or under the direction of a commissioner, at any time after the said tenth day of March, 1885. Said property was advertised and sold under the said decree by the defendant John D. Canfield, as circuit court commissioner, on the twenty-first day of May, 1885, and the property was bid off by C. E. Warner, for the use and benefit of Ellen V. Eaton, for the sum of $4,525. At said sale it was represented that no other claims except said decree and said levy were against the property, and such statements were made in answer to inquiries upon the subject, and in the presence of Alonzo and Caleb Eaton, who were present at the time. Neither Alonzo nor Caleb made any statement to the contrary at the time, but it is claimed that Caleb had a party at the sale by the name of Jepp, who bid upon the property in the interest of Caleb. Mrs. Ellen V. Eaton claims that the property was not worth more than the sum bid for it by Warner, and that said Jepp bid $4,500 for it. It further appears that she is ready and willing to pay the sum at which the property was struck off to Warner, and has paid the sum of $25, but notwithstanding this Hiram Eaton, instigated by Caleb, has directed a resale of the property by the commissioner, and that defendant Canfield, in compliance with such direction, has already commenced advertising the property for sale again under said decree. After the sale and before the commissioner's deed was executed and delivered, certain other mortgages were discovered to be undischarged upon the records, as follows: (1) A mortgage by Mary M. Rossman to Augustus H. Emery, dated December 13, 1873, for $900, and December 19, 1873, assigned by Emery to Alonzo Eaton, and December 19, 1873, assigned by Alonzo Eaton to Frederick B. Hooper, and March 3, 1874, assigned by Hooper to defendant Caleb Eaton. (2) A mortgage by Mary Rossman to Alonzo Eaton, December 18, 1873, for $1,000, and March 4, 1874, assigned by Alonzo Eaton to Caleb Eaton. (3) A mortgage by Mary H. Rossman to Sylvester Noble, February 14, 1874, $628, and on February 21, 1874, assigned by Noble to Caleb Eaton. On September 12, 1885, there was placed on record an assignment of the last-mentioned mortgage by Caleb Eaton to his wife, Francis A. Eaton, bearing date July 2, 1885, and Francis A. Eaton was subsequently made a party to complainant's bill which was properly amended for that purpose.

It is claimed by the complainants that, although the last three mortgages mentioned were not discharged of record, yet they were not valid securities upon the property; that they had been paid and satisfied; and that the defendant Caleb Eaton held and continued the same upon record as an...