Jackson v. Evans

• Decision Date: 27 October 1880
• Citation: 44 Mich. 510,7 N.W. 79
• Court: Michigan Supreme Court
• Parties: JACKSON v. EVANS.

7 N.W. 79

44 Mich. 510

JACKSON v. EVANS.

Supreme Court of Michigan

October 27, 1880

A son took a conveyance of a farm from his mother, assuming a mortgage thereon, and giving a mortgage for the remainder of the purchase price. In January, 1878, judgment was recovered against him, and on September 23, 1878, an alias execution was levied upon a certain crop growing on the farm, and, on July 12th following, it was sold at execution sale. September 20, 1878, he made a verbal arrangement with his mother, by which she was to take back the farm, and he would give her the crop to apply on her mortgage, at a valuation of $200 and an indorsement was then and there made on the mortgage to that effect. No consideration passed between them. She afterwards gave a bill of sale of the wheat. Held, that the rights of the purchaser at execution sale were paramount to those of the purchaser in the bill of sale.

Error to Calhoun.

Leonidas D. Dibble, for plaintiff in error.

Clapp &amp Reynolds, for defendant in error.

COOLEY J.

This was an action of trover to recover the value of a certain field of wheat. The trial was without a jury, and the finding of facts is as follows:

That on February 4, 1870, Isabella Cleveland was the owner in fee of certain premises. That on June 13, 1874, she conveyed the same to Frank Cleveland, her son. That upon said sale Frank Cleveland assumed the payment of a mortgage upon said premises, and a note, for $1,000, given by Isabella Cleveland to Moses W. Wheelock. That he also gave to Isabella Cleveland a mortgage and note for $2,500. That no payment of principal or interest had been made upon either prior to September 20, 1878. That on January 1, 1878, a judgment was obtained by the plaintiff against Philander and Frank Cleveland, before one Russell, a justice. That on February 16, 1878, execution was issued to one Briggs, a constable and on April 18, 1878, returned nulla bona. That on September 23, 1878, alias execution was issued, and levied on Frank Cleveland's interest in certain wheat growing upon said premises and on the farm of one Burrows.

That on July 12, 1879, the interest of Frank Cleveland in said wheat was sold to plaintiff at constable's sale for $50. That on September 20, 1878, it was verbally agreed between Frank Cleveland and Isabella Cleveland that she should take back the farm, and he should give her the wheat in question to apply on her mortgage at a valuation of $200, and the same was then and there indorsed on said note and mortgage, which indorsement was made in the presence and with the knowledge and consent of Frank Cleveland. That Frank Cleveland exercised no control over the wheat after the arrangement was made. That on June 25, 1879, Isabella Cleveland sold and by bill of sale conveyed this wheat to defendant, which bill of sale was filed in the proper town clerk's office June 30 1879. That on July 30, 1879, defendant...