Hurst v. Beaver

• Decision Date: 13 June 1883
• Citation: 50 Mich. 612,16 N.W. 165
• Court: Michigan Supreme Court
• Parties: HURST v. BEAVER.

16 N.W. 165

50 Mich. 612

HURST v. BEAVER.

Supreme Court of Michigan

June 13, 1883

As a deed given to secure money lent and redeemable by its payment is a mortgage, at least as between the parties and those who purchase from them with notice, the conveyance in this case must be considered a mortgage.

Upon examination of the evidence in reference to the mistake in the description of the land described in the mortgage in this case, held, that the decree below should be affirmed as to all but that portion which declares the mortgage to cover the whole E. 1/2 of the S.E. 1/4 of section 32, and that it should be so modified as to include only the S.E. 1/4 of that quarter section.

Appeal from Berrien.

James A. Kellogg, for complainant.

Theo. G. Beaver, in pro per., for defendant and appellant.

CAMPBELL J.

The bill in the original cause, to which the present has succeeded by revivor, was filed for the double purpose of correcting and foreclosing a mortgage given in April, 1876 by Daniel M. Fisher and Betsey, his wife, to Josiah Hurst who was complainant in the original bill, and who is now deceased. The mortgage correctly described 240 acres in section 5 of township 6 S., of range 19 W., and then purported, in addition, to cover "the south-east quarter of the quarter of section 32, town 5 south, of range 19 west containing 40 acres of land." The bill claims that the land intended to be mortgaged was the E. 1/2 of the S.E. 1/4 of section 32, township 5 S., of range 19 W., containing 80 acres. Daniel M. Fisher conveyed his lands to Theodore G Beaver pending the suit. A decree was rendered against Fisher, correcting the mortgage as prayed, from which he appealed. The cause was remanded to the circuit court for further proceedings, as Daniel Fisher died pending a motion to dismiss, and the proceedings were revived by a bill. As counsel on both sides treat the case as properly framed to examine the original equities, we shall proceed with it on that basis.

Before considering the question of mistake, it is necessary to refer to some transactions subsequent to the mortgage which defendant claims resulted the conveyance by Hurst to Fisher of the lands in section 6 absolutely, and a reconveyance by new warranty deed of the same property as security for the original debt, and some further advances, under arrangements which discharged the mortgage itself. The facts appear to have been as follows: On the twenty-sixth day of September, 1846, Hurst advanced to Fisher $300, and Fisher signed an agreement to obtain a deed from the state of Michigan to Hurst of the 240 acres in section 5; and Hurst was to reconvey to Fisher on payment back of the $300, and of "all incumbrances by mortgage due said Hurst." The state tax title was conveyed by some mistake to Josiah Hunt, and not to Josiah Hurst. Hurst, on the second of January, 1878, using the name of Josiah Hunt, quitclaimed the 240 acres to Fisher, who at the same time gave to Hurst a warranty deed of the property. The object of Hurst in getting the title in this was to save the expense of a foreclosure. The original mortgage contained no power of sale, and could only be foreclosed in equity. There seems to have been no written defeasance or other written agreement executed after this warranty deed was made. But the original answer of Fisher set up that the deed was security and by way of mortgage, although insisting it was merely to secure the repayment of the $300, and interest advanced, to get rid of the taxes.

We have no doubt the object of this transaction was to confirm the mortgage title, and not to destroy it, and that it must be regarded as continuing for purposes of security, and open to foreclosure in equity. Such was the purpose indicated in the instrument executed by Fisher when the $300 was advanced...