Harwood v. Underwood
| Decision Date | 07 January 1874 |
| Court | Michigan Supreme Court |
| Parties | Joseph W. Harwood v. Daniel K. Underwood and others |
Heard October 28, 1873
Appeal in Chancery from Lenawee Circuit.
Bill to redeem. Defendant Underwood appeals. Reversed.
Decree reversed, with costs, and the bill dismissed, without prejudice.
A. L Millard, for complainant.
A Howell and C. A. Stacy, for defendant Underwood.
Christiancy, J. did not sit in this case.
The complainant's counsel on the argument rested his right to maintain the suit and uphold the decree in his favor, on the ground that the bill was one for redemption, and in imputing this character to the bill he was undoubtedly correct.
It is not perceived how any other construction could be given to it. Assuming this view to be correct, and going on to examine the action, it is first of all material to ascertain what sort of a case the complainant has set forth as entitling himself to intervene in the character assumed. As he has stated it, the substance of the case is, that one Harrison Harwood, a brother, with his own means purchased a described portion of a city lot in Adrian, upon which there was a building, but in order to keep it from his creditors he caused it to be conveyed by the grantor directly to his father-in-law, instead of taking the title to himself; that Harrison Harwood nevertheless went into possession and controlled the property; that at the time of this purchase and conveyance the property was under a mortgage from one Taylor, a former owner, to defendant Underwood, dated May 15th, 1855, for nine hundred dollars, payable in three equal annual installments, with annual interest; that some rents were derived from the building, the whole or a portion of which, by arrangement between Harrison Harwood and Underwood, were being received by the latter and applied on the mortgage; that in this state of things, and whilst Harrison Harwood was thus in actual possession, the complainant obtained a judgment against him for one thousand sixteen dollars and forty-four cents damages, and costs, on the law side of the court below; that this recovery was in July, 1856, and that an execution was forthwith taken out and levied on this lot; that both Underwood, the mortgagee, and Harrison Harwood, the execution debtor, were informed of this levy; that no other or further step was taken to enforce the judgment or obtain any benefit by legal proceedings on account of the levy; that in July, 1857, which was a year later, Underwood proceeded to foreclose the mortgage under the statute, and that this proceeding terminated by a sale to him by the sheriff for three hundred and fifty-three dollars in September, and the deposit of a deed; that in May, 1858, Underwood commenced a second time to foreclose under the statute, and pursuant to his notice the sheriff struck the premises off to him at three hundred and forty-four dollars and five cents, and gave another deed to him; that immediately after this last sale, and in August or September, 1858, and before the time for redeeming under the first sale had expired, the complainant, through another brother, Washington Harwood, who acted in that regard as his agent, inquired of Underwood whether he (the complainant) might not pay him (Underwood) the amount due on the mortgage, and take a transfer of it to secure him (the complainant) for the amount due on the judgment; that after a little delay Underwood finally suggested as a better plan, that the time to redeem should be allowed to run out, saying that all he wanted was his mortgage money, and that he would let complainant have the land on his paying him the mortgage debt; that complainant trusted to this understanding, and allowed the time for redemption to expire; that afterwards Underwood informed Washington Harwood that complainant might have years to make payment in by keeping up the interest, but that no definite time was then agreed on; that in December, 1858, one Tomlin, a co-partner of complainant, and acting for him in the matter, proceeded with Washington Harwood to call on Underwood, and then received assurance from the latter of the same nature as those theretofore given to Washington; that in January, 1857, Tomlin, in company with Washington Harwood, again called on Underwood, when it was arranged that complainant should have until the first of the following April in which to make...
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