Lenox v. Fuller

• Decision Date: 09 October 1878
• Citation: 39 Mich. 268
• Court: Michigan Supreme Court
• Parties: Levi J. Lenox v. Erastus M. Fuller

39 Mich. 268

Levi J. Lenox v. Erastus M. Fuller

Supreme Court of Michigan

October 9, 1878

Submitted June 19, 1878

Error to Macomb.

Trespass on the case. Defendant brings error.

Judgment affirmed with costs.

C. R Canfield for plaintiff in error. Replevin to regain possession is inconsistent with an action on the case for damages from deceit in obtaining the property, Morris v Rexford, 18 N. Y., 552; Beloit Bank v. Beale 34 N. Y., 473; Lindsley v. Ferguson, 49 N. Y., 623; Carroll v. Rice, Walk. Ch., 373; Connihan v. Thompson, 111 Mass. 270; Galloway v. Holmes, 1 Doug. (Mich.), 330; Sloan v. Holcomb, 29 Mich. 153; Thompson v. Howard, 31 Mich. 309; Beam v. Macomber, 35 Mich. 455; Wheaton v. Baker, 14 Barb. 594; separate suits cannot be brought upon a single demand for which there is a substantive cause of action, Bendernagle v. Cocks, 19 Wend. 207; Marlborough v. Sisson, 31 Conn. 332; Branneburg v. Ind. & C. R. R., 13 Ind. 103.

Joseph Chubb and J. B. Eldredge for defendant in error. One who has elected to treat a sale by him as void for fraud may sue for damages from the fraud, Warren v. Cole, 15 Mich. 265; one cannot complain of instructions favorable to himself, English v. Caldwell, 30 Mich. 362; Clark v. McGraw, 14 Mich. 151.

OPINION

Graves, J.

April 27, 1876, Fuller conveyed his farm of eighty acres to Lenox for the consideration of $ 2600. The conveyance was made subject to a mortgage given to one Castor and on which there remained three hundred dollars and some interest. For a thousand dollars of the purchase price Lenox gave his note to Fuller payable in sixty days. The remaining thirteen hundred dollars was secured by mortgage on the place. Lenox caused his deed to be put on record within a day or two, but Fuller neglected to have his mortgage recorded until the middle of June. In May Lenox mortgaged the place to Mrs. Connor for thirteen hundred dollars. Fuller did not move from the place, but Lenox controlled the use of it.

He built a barn and performed some work on the place, and as it seems, paid the Castor mortgage and some part of the note for a thousand dollars. There were some other dealings between the parties which are not clearly explained. Finding himself unable to pay the rest of the purchase money, Lenox made overtures to Fuller in the course of the fall to trade back on some terms. Fuller was at first averse to doing so, but at length consented.

Some matters between them which are not very distinctly described were to be canceled. What remained of the amount originally covered by the note for a thousand dollars was to be surrendered. The mortgage to Fuller for thirteen hundred dollars was also to be discharged, and besides Fuller was to deliver a colt and pig, and Lenox was to reconvey.

November 1st, 1876, the parties proceeded to carry out the arrangement. And so far as the record shows they did carry it out without leaving any ground of contention except in regard to a single matter and which is the cause of the present litigation.

Fuller charges that he had no knowledge of the mortgage to Mrs. Connor and that Lenox repeatedly told him expressly that he had not encumbered the place. This suit was brought to recover damages for this alleged deceit, and Fuller obtained a verdict for $ 800. Lenox insists that it was part of the understanding for the reconveyance that it should be subject to his mortgage to Mrs. Connor and that Fuller was fully informed of the existence of that mortgage. The deed contained the usual covenants and that against incumbrances contained an express exception of the mortgage to Mrs. Connor, and Lenox testified that the deed including the exception was slowly and distinctly read to Fuller. The latter swore that only a part of the deed was read to him and that the part referring to this mortgage was not. Each adduced further evidence to support his own version.

There is no force in the objection made against the admission of the record of the mortgage given by Lenox to Fuller. It was one of the surrounding and explanatory facts which the jury were entitled to have before them. The mortgage was one of the papers to be cancelled on the reconveyance and was an incident connected with the commission of the wrong complained of. Moreover the record was evidence that the mortgage was not recorded until after Mrs. Connor's.

A witness, who was a carpenter, was asked what the barn was worth, and this was objected to as irrelevant. This inquiry bore upon the value of improvements made by Lenox and upon the credit due to Fuller's claim that he did not accept the place subject to Mrs. Connor's mortgage. The greater the value of the improvements added by Lenox the more room for question whether Fuller did not take the place back burdened by the Connor mortgage. The changes made by Lenox and the true state of the premises when they were reconveyed were proper matters for the jury.

Evidence was given to show that Fuller's reputation for truth and veracity was bad and Mr. Stone was called to sustain him. Having stated that he knew him, but was not acquainted with his reputation for truth and veracity in the neighborhood where he lived,--that he was acquainted with his neighbors and had considerable to do with them, he was then further asked whether he had ever heard of his truth and veracity being questioned. This was objected to as incompetent, but the court allowed the question and the witness replied that he could not say he ever had. The point is supposed to have been ruled expressly the other way by our predecessors, and ...