Jeffrey v. Hursh

• Decision Date: 23 January 1880
• Citation: 4 N.W. 303,42 Mich. 563
• Court: Michigan Supreme Court
• Parties: IRA JEFFREY and others v. ELIZABETH HURSH and others.

4 N.W. 303

42 Mich. 563

IRA JEFFREY and others v. ELIZABETH HURSH and others.

Supreme Court of Michigan

January 23, 1880

Plaintiffs in ejectment claimed under a deed absolute in form, which defendants claimed was only a mortgage. The evidence of its mortgage character was all parol. Held, that plaintiff under such deed was entitled to possession, and defendant's remedy, if any, was in equity.

Error to Isabella.

Spaulding & Cranson, for plaintiffs in error.

Brown &amp Leaton, for defendants in error.

GRAVES, J.

The plaintiffs in error, who are the sole heirs at law of John Jeffrey, deceased, brought this action of ejectment to recover certain premises some years previously con-conveyed by the defendant Elizabeth Hursh to their father, the said John Jeffrey.

The defence was that the plaintiffs were not entitled to recover possession, because the before mentioned grant from Mrs Hursh to plaintiffs' father, although an absolute conveyance on its face, was in fact only a mortgage, and there are no questions presented which are independent of the validity of this defence.

The points agitated relate to the right to defend against the ejectment on this ground, and to the charater of the evidence adducible to prove the fact. That the grant in question was apparently an absolute conveyance is admitted and is certain and it is equally certain that no written defeasance is shown. The bond to John M. Hursh, the husband and attorney in fact of the grantor, does not purport to be a defeasance. Parol evidence would be necessary to stamp the arrangement as a mortgage transaction.

The plaintiffs requested an instruction that they were entitled to a verdict. But this was refused, and the circuit judge left it to the jury to find a verdict for the defendants if satisfied on the whole evidence that the deed referred to was intended as a mortgage, and they found for the defendants. The ruling was erroneous. The jury should have been instructed as requested by plaintiffs' counsel.

In Wetherbee v. Green, 22 Mich. 311, it was strongly intimated that an absolute deed though intended as a mortgage and permitting redemption, would confer a right of possession on the grantee wholly unaffected by the statute prohibiting ejectment by a mortgagee before foreclosure, and in the later case of Bennett v. Robinson, 27 Mich. 26-30, it was distinctly laid down that although as between the parties such a transaction is a...