Enos v. Sutherland

• Decision Date: 20 October 1863
• Citation: 11 Mich. 538
• Court: Michigan Supreme Court
• Parties: Roswell Enos v. John E. Sutherland and another

11 Mich. 538

Roswell Enos v. John E. Sutherland and another

Supreme Court of Michigan

October 20, 1863

Heard July 17, 1863

Appeal in Chancery from Berrien Circuit. The case is stated in the opinion.

Decree affirmed, with costs.

F Muzzy, for complainant:

1. The transaction amounted to a mortgage of the land as security for the debt: 2 Lead. Cas. in Eq., pt. 2, p. 432; 9 Wend 227; 4 Johns. Ch., 167; 24 Me. 185; 4 Pick. 349; 5 Paige 9; 3 Mich. 482.

2. The bill to redeem was properly filed by the administrator: 8 Met. 36; Comp. L., §§ 2903, 2904, 3038, 2913; 1 Kern. 237; 2 Hill 181.

3. The want of proper parties is not a sufficient ground for dismissing the bill, unless it is manifest that a decree can not be made without such parties: 3 Cranch 220; 4 Vt. 178; 5 Paige 172.

D. A Winslow, for defendants:

The administrator could not file a bill to redeem in his own name: 2 Barb. Ch. Pr., 193-4; Little v. Lesia, 5 Mich. 119.

The instrument given to Joseph Enos was not a defeasance, as it contained no proper words of defeasance. And a seal and the other requisites of a deed would be necessary to render it valid: Comp. L., §§ 2720, 2727. It can at best only be treated as a parol defeasance; and as such is void.

But that it was not intended as a defeasance fully appears. It was a conditional sale of the land, and can not be treated as a mortgage: 4 Kent 143; Swetland v. Swetland, 3 Mich. 491-8.

Campbell, J. Martin, Ch. J. and Manning, J. concurred. Christiancy, J. did not hear the argument.

OPINION

Campbell J.:

Complainant, as administrator of the estate of Joseph Enos, deceased, filed his bill to redeem certain premises from an alleged mortgage, given by his intestate to defendants as partners under the name of J. E. Sutherland & Co. The bill alleged that Joseph Enos made an absolute deed to defendants, who gave him back a defeasance of the following tenor:

"Bond of J. E. Sutherland & Co., to Joseph Enos. The conditions of this bond are as follows: That whereas, said Joseph Enos is indebted on settlement to J. E. Sutherland & Co., at this date, the amount of two hundred and seventy dollars, and a further sum to the amount of one hundred and forty dollars in cash furnished, and the consideration therefor, for the purpose of going to California, making in all the amount of four hundred and ten dollars, which amount is embraced in a certain deed of same date of this instrument, in favor of J. E. Sutherland & Co., and signed by Joseph Enos and his wife, Lucy Enos, covering the following described parcels of land, viz:"

[Here follows description.]

"The final conditions are, that said Joseph Enos is to pay to said J. E. Sutherland & Co. the full sum of two hundred and seventy dollars, with lawful interest from date, on or before the first day of April, eighteen hundred and fifty-two, and the full sum of one hundred and forty dollars, without interest, within the same time, which amounts, if well and truly paid, all within the time as above specified, then the said J. E. Sutherland & Co. are to deed back to said Joseph Enos, or his heirs, our entire right and interest in said lands above described. But in case said amounts as named are not thus paid, then this instrument to be void.

"J. E. Sutherland & Co."

The bill further alleged that defendants had sold a portion of the premises to an innocent purchaser, and that the value of the premises sold exceeded the amount of the debt. These allegations were fully made out by the proofs, and the court below decreed a release of the unsold premises, and a personal judgment for the value beyond the amount of the mortgage debt.

It was claimed on behalf of the defense that the defeasance was invalid, or, if valid, that it showed the transaction to be an agreement for a re-sale, and not a mortgage. The instrument shows that the land was to be reconveyed on payment of an existing debt with interest. It is so plainly an instrument for securing a recognized indebtedness that there is no rule which can authorize us to treat it as anything but a landed security, or, in other words, a...