Galpin v. Abbott

• Citation: 6 Mich. 17
• Court: Supreme Court of Michigan
• Decision Date: 13 November 1858
• Parties: Horace Galpin v. James Abbott and others

6 Mich. 17

Horace Galpin v. James Abbott and others

Supreme Court of Michigan

November 13, 1858

Heard October 15, 1858; October 19, 1858; October 20, 1858 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Appeal from Wayne Circuit in chancery.

The bill was filed in the court below to redeem certain premises in the city of Detroit from a mortgage. It sets forth that on the third day of July, 1835, James Abbott, being the owner of said premises, conveyed the same to Francis G. Macy, for the consideration of $ 5,000, and the deed thereof was duly recorded; that, soon after said conveyance, Macy left Michigan, and has not since resided therein, and has been entirely ignorant of any use which may have since been made of said lots, and that he gave no assent to any such use that, on receiving such conveyance, Macy gave a mortgage back to Abbott, executed and recorded in due form, to secure the payment of $ 4,000 of the purchase money, in four equal annual installments, with interest.

That on the 4th day of August, 1835, Macy being still the owner of said premises, subject to the mortgage, gave a warranty deed of a one-fourth undivided interest therein, to one Freeman Dodd, which latter deed was recorded in the office of the register of deeds of the city of Detroit, on the 9th day of October, 1835; that said Dodd never resided in Michigan, and never assented to, or knew of, any occupancy or use of said lots adverse to himself.

That on said 4th day of August, 1835, Macy, being still the owner of a three-fourths interest in said premises, subject to said mortgage, gave a warranty deed of an undivided one-half interest therein to Joseph Hoxie; which last deed was recorded in the office of the register of deeds of the city of Detroit, on the 9th of October, 1835; and that said Hoxie never resided in Michigan, and never assented to, or knew of, any use or occupancy of said premises adverse to himself.

That on the 1st of November, 1837, Macy mortgaged his remaining one-fourth interest to the Farmers & Mechanics' Bank of Michigan, which latter mortgage was by the bank subsequently assigned to Messrs. Trowbridge, Stewart, and Owen, and by them to G. V. N. Lothrop. Mr. Lothrop was made a party defendant, and allowed the bill to be taken as confessed.

The bill further states that the first and second installments of the mortgage given by Macy to Abbott, were duly paid; that, the third and fourth installments remaining unpaid, Abbott, in or about the month of August, 1839, filed his bill to foreclose the said mortgage, in the then Court of Chancery for the first circuit of the state of Michigan; that such proceedings were thereupon had in said foreclosure suit that, on January 12th, 1841, said premises were sold by a master, pursuant to a decree of said court, to said Abbott, for two hundred dollars, and a master's deed given therefor, which was recorded February 4th, 1841, in the register's office of Wayne county. The master made his report, which was confirmed by the court, January 12th, 1841, and a decree entered against Macy for the balance.

That said Abbott was sole complainant, and Macy sole defendant in said foreclosure suit, although Abbott well knew, and had due notice, in law and in fact, of the conveyances to Dodd and Hoxie, and of the mortgage to said Farmers & Mechanics' bank, so that the rights, interests and equities of said parties, and their assigns, were wholly unaffected by said foreclosure proceedings; that Dodd and Hoxie had no notice of said foreclosure proceedings, nor did they in any way assent thereto, or to any conveyances or occupancy of said lots, since the conveyance thereof by Macy, as aforesaid.

That on the 4th of August, 1842, Abbott gave a warranty deed of said premises to John Winder, but neither Abbott nor Winder ever took or had any actual or legal possession after the said deed to Macy; or if they ever took possession, it was not till the year 1845.

That in 1852, Winder caused said premises to be surveyed and platted into city lots, and several persons became interested therein by purchase, who are made parties defendant to the bill.

That on the 4th day of October, 1854, said Hoxie, being still the owner of a one-half undivided interest in said premises, conveyed the same by deed, executed in due form, to the complainant; which deed was duly recorded.

That, on or about January 8th, 1839, Dodd assigned all his interest in said premises to John Stevens and William Emerson, and the survivor of them, in trust for Dodd's creditors, with full power in the assignees to sell the same as they should see fit; that said assignees accepted the trust, and took on themselves its execution; that Stevens subsequently died, whereupon the title of Dodd in the property became vested in Emerson, the surviving assignee.

That on the 21st day of July, 1842, the said Dodd filed his petition in the District Court of the United States for the southern district of New York, sitting in bankruptcy; and, pursuant to the statute and the practice of said court, he was duly declared a bankrupt by said court, September 5th, 1842; and W. C. H. Waddell, who was the general assignee in bankruptcy appointed by said court, became the owner of all the property of said Dodd, from the date of said decree.

That Waddell, on March 17th, 1855, pursuant to the order and direction of said court in bankruptcy, sold and conveyed to the complainant all the right and interest which he had in the premises, as assignee of Dodd, and by virtue of said decree in bankruptcy.

That after the death of said Stevens, assignee of Dodd as aforesaid, said Emerson, his survivor, on June 6th, 1855, sold and conveyed to the complainant all the interest he had in said premises, as assignee of Dodd, and as survivor of Stevens. And the bill charges that neither Stevens nor Emerson knew any thing of the foreclosure suit of Abbott against Macy, nor had notice of any conveyances, occupancy, or improvements, from and under Abbott and his assigns thereafter.

And complainant claimed, by virtue of said several conveyances, to be the owner in fee simple of an undivided three-fourths of said premises, subject only to said Macy mortgage.

Winder, and the several defendants deriving title under him, claimed to be purchasers in good faith under the proceedings had for the foreclosure of the Macy mortgage, and without any notice of the Dodd and Hoxie deeds, and insisted that the right of Macy and his grantees to redeem was extinguished by such foreclosure proceedings.

The cause having been put at issue, testimony was taken, of which it is only necessary to notice that relating to the Dodd and Hoxie deeds. These were both executed in the city of New York, in 1835, and acknowledged before a commissioner of deeds, in all respects in conformity with the then laws of New York, and each had a single subscribing witness, who was the officer taking the acknowledgment; no county clerk's certificate was attached, showing the official character and signature of the commissioner. The deeds were recorded in the office of the register of deeds of the city of Detroit, on the 9th day of October, 1835; and the principal question in the case was, whether, having but one subscribing witness, and wanting such clerk's certificate, they were authorized, under the laws of the territory of Michigan, then in force, to be recorded, so that their being placed on the record was constructive notice to Abbott and those claiming under him. There was no proof that Abbott had actual notice of these deeds at the time of the foreclosure.

Decree of the court dismissing the bill, affirmed.

L. Bishop and C. I. Walker, for complainant:

1. The record of conveyances, when authorized by law, is notice to the world of all rights and interests under them.

2. The Dodd and Hoxie deeds were executed and acknowledged in strict conformity to the laws of New York, and were therefore authorized to be recorded here under the act of 1827, embraced in the code of 1833. This act did not specify what evidence should be deemed sufficient that a deed has been executed according to the foreign law, when it is presented to a register for record; and this defect is made the subject of comment by the Supreme Court in Ives v. Kimball, 1 Mich. 308. But it may be presumed, as say the court, that the register did his duty, and that he had the proper evidence before him: Ewing's Heirs v. Savary, 3 Bibb 287; Hope v. Sawyer, 14 Ill. 254. A register of deeds might record any deed which appeared to have the proper form, leaving the questions, whether it was properly recorded, and whether it was notice to subsequent purchasers, to be determined when they should arise: Talbot's Lessee v. Simpson, Pet. C. C., 188, 189

3. Defendants claim that deeds executed out of the territory must conform not only to section 7, but also to section 1, of the act of 1827, and, therefore, that such deeds must have two witnesses, whether the law of the place where executed required them or not; and that they must, in all respects, be in accordance with all of the provisions of our statute, and also with the laws and usages of the place where executed. To this most unnatural and forced construction of the statute we answer:

It is contrary to the plain and obvious intention of the legislature, which must prevail, so that professional criticism shall not be necessary to understand it: 23 Pa. St., 231.

Nothing can be more manifest than that two classes of conveyances were intended to be provided for; that sections 1 and 2 should cover the first class, composed of deeds executed in the...