Kimball v. Goodburn

• Citation: 32 Mich. 10
• Court: Supreme Court of Michigan
• Decision Date: 27 April 1875
• Parties: Ellen Kimball v. Edward Goodburn and another

32 Mich. 10

Ellen Kimball v. Edward Goodburn and another

Supreme Court of Michigan

April 27, 1875

Heard April 15, 1875

Appeal in Chancery from Shiawassee Circuit.

Decree affirmed, with costs.

Gould & Lyon, for complainant.

W. M Kilpatrick and Hugh McCurdy, for defendants.

Campbell J. Graves, Ch. J., and Cooley, J., concurred.

OPINION

Campbell, J:

Specific performance was granted in the circuit court for Shiawassee county of a written contract whereby defendants agreed on certain terms to convey to complainant the land in controversy. The price was sixteen hundred dollars. Of this four hundred was paid down; three hundred December 1, 1872, and one hundred April 1, 1873. The balance was to be paid in land described in the contract and situated in Saginaw county. The clause in the contract on which this suit has been contested is as follows: "Said land to be deeded free and unincumbered within one year, or in lieu thereof eight hundred dollars to be paid with lawful interest from the date hereof to be paid annually on the whole sum remaining due and unpaid in each year." The contract was dated October 11, 1872.

The Saginaw land had been mortgaged in 1857 for one hundred dollars to a corporation known as the Bushwick company. This mortgage was paid, but not discharged of record. Complainant had not succeeded in obtaining this discharge within the year. Seeing this could not be done at once, complainant communicated with Goodburn, who agreed that he would give her the necessary time to do this if she would pay him legal interest on eight hundred dollars for a year, and ten per cent. thereafter until the release should be obtained and the title perfected. She paid him fifty-six dollars, and agreed to pay the ten per cent.

The release was obtained in January, 1874, but defendants refused to perform. It is objected, among other things, that the release is invalid because not properly executed. It was executed by a person who is shown to have been the last secretary, and who does not appear to have resigned or lost his official character, which mere lapse of time would not destroy. The mortgage having been paid, its release was a matter of right, and we think the secretary was properly authorized to do the formal act, and could do it anywhere.

It was also claimed that the assets were in the hands of a receiver who had never been discharged. We have no evidence of this but the return or order of a circuit court commissioner to whom it had been referred to appoint a receiver, stating the appointment and his action thereon. The evidence of confirmation is wanting. But...