McCabe v. Farnsworth

• Decision Date: 15 April 1873
• Court: Michigan Supreme Court
• Parties: Bradley S. McCabe v. George Farnsworth and others

27 Mich. 52

Bradley S. McCabe v. George Farnsworth and others

Supreme Court of Michigan

April 15, 1873

Heard January 15, 1873

Appeal in Chancery from Mason Circuit.

Decree of the circuit court in chancery reversed and the bill dismissed, with costs in both courts.

R. W Duncan and N. J. Emmons, for complainant.

Eben C Smith and E. Mariner, for defendants.

The defendants appealed from the decree, which was in favor of complainant; but the complainant being dissatisfied as to the rate of interest allowed by the decree, also appealed. During the argument the question was raised whether such cross appeal was necessary.

The Court held tat when a party in whose favor a decree is granted, wishes the decree modified in his favor, he must appeal, notwithstanding the other party has appealed.

OPINION

Christiancy Ch. J.

This was a bill filed in Mason county, March, 1863, to foreclose a mortgage dated September 26, 1848, executed in Wisconsin by the defendant, George Farnsworth, then of Racine, Wisconsin, to Harry R. Talmage of Milwaukee, upon a tract of land situated in Mason county, Michigan, including a saw-mill and other buildings thereon, to secure the payment of a promissory note of one thousand five hundred dollars, executed by Farnsworth, payable to the order of said Harry R. Talmage at the city of Milwaukee on the first day of November, 1849. The mortgage was duly recorded October 24, 1848.

The bill alleges that the note and mortgage, though executed to Harry R. Talmage of Milwaukee, were given for the purpose of securing a then existing indebtedness of Farnsworth to Harry Talmage of Greenville, Greene county, New York, who by the evidence appears to have been the father of said Harry R., which indebtedness is alleged to have accrued by way of money loaned to Farnsworth by said Harry Talmage; and that the note and mortgage were given for the sole use and benefit of said Harry Talmage; that on the 10th day of June, 1849, said Harry R. duly assigned and delivered said mortgage and note to said Harry by an assignment in writing which was afterwards, January 23, 1856, duly recorded; that said Harry Talmage, while being the owner of said note and mortgage, died in the forepart of the year 1855, intestate, and in the same year administrators (naming them) were duly appointed upon his estate, by the county judge of the county of Greene; that, as such administrators, they on the 10th day of November, 1862, at Greenville aforesaid, in consideration of four thousand and forty-two dollars, paid to them by the complainant, sold, assigned, and transferred said note and mortgage to him, together with the debt thereby secured, by an assignment duly executed and acknowledged; alleges that the sum due at the filing of the bill is the whole principal sum of one thousand five hundred dollars, with interest at the rate of twelve per cent. per annum, from the date of the mortgage.

The other defendants (except Farnsworth) are made parties only by the general allegations that they "have or claim to have some interest in said mortgaged premises or in some part thereof as purchasers, mortgagees, or otherwise."

In all other respects the bill is in the ordinary form of a foreclosure bill, praying the usual decree for the payment of the amount due, or sale and foreclosure.

James Ludington alone answers the bill; but by stipulation the defendants, Farnsworth, John M. Loomis, H. Sidney Hayden, and George Ludington, against whom a pro confesso had been entered, were allowed to appear, and the answer of James Ludington allowed to stand also as their answer.

This answer admits the execution of the note and mortgage by Farnsworth to Harry R. Talmage, but denies that they were executed to secure any indebtedness of Farnsworth to said Harry Talmage, or for his sole use as alleged in the bill, and alleges upon information and belief, that the indebtedness, if any, for which the note and mortgage were given, was from Farnsworth to said Harry R.; states that defendants are ignorant whether the note and mortgage were assigned by said Harry R. to said Harry, or whether, if any, it was recorded; but avers that if such assignment was made, it was made secretly and kept concealed from the said Farnsworth, who never had any notice thereof; that defendants are ignorant whether said Harry died intestate, or whether administrators were appointed, or whether they sold and assigned the note and mortgage to complainant as alleged; but denies that said Harry Talmage, in 1855, owned the mortgage or had any interest in it; denies that there is due upon the note and mortgage fifteen hundred dollars and interest, or any other sum; alleges that these defendants are the owners in fee of the premises.

The answer then avers that on or about the 15th day of October, 1850, said Farnsworth and Merritt B. Atwater conveyed to said Harry R., then the owner and holder of said note and mortgage, and to Harry S. Durand and Israel Munson Hill the said mortgaged premises, together with a large amount of lands adjacent, in full satisfaction of said note and mortgage; and that said Harry R. then and there agreed to take and receive said conveyance as a full and complete satisfaction and payment of the debt secured by said mortgage, among other debts, and agreed to satisfy and discharge the same, and did so take and receive the same in payment and satisfaction, and that said mortgage became thereby extinguished.

The other defendants, George W. Ford, Charles Mears, and John Baldwin, Jr., failing to appear and answer, the bill as to them was taken as confessed.

The case was heard in the court below upon the pleadings and proofs, and a decree in the usual form of foreclosure and sale granted against all the defendants, with costs, including a personal decree against Farnsworth for any balance which might remain due after the sale. From this decree the defendants, James Ludington, George Farnsworth, John M. Loomis, H. Sidney Hayden, and George Ludington have appealed.

With the exception of the general allegation that the defendants who answer are the owners in fee, there is nothing in any of the pleadings showing any interest of any of the defendants, except Farnsworth, in the mortgaged premises, or in the controversy.

The proofs show no such interest in any of the defendants (whether answering or not) except Farnsworth, the mortgagor, and George W. Ford, to whom the fee or equity of redemption of five-sixths of the mortgaged premises is traced, nor does any reason whatever appear why any of the other defendants were made parties.

It appears from the evidence that one-third of the mortgaged premises, after the execution of the mortgage, was conveyed by Farnsworth to Merritt B. Atwater and Ira Atwater; that Farnsworth, still owning one-third, and Merritt B. Atwater, one-sixth, conveyed by warranty deed (purporting to convey the whole) to Harry R. Talmage and to Harry S. Durand and Israel M. Hill (who seem to have been partners known as Durand & Hill), taking back an agreement,--which deed and agreement will be more fully noticed hereafter. But Ira Atwater having died in the meantime, his one-sixth of the mortgaged premises vested in his heirs, who did not convey, and in whom that interest still remains, so far as appears from the evidence. Harry R. Talmage afterwards conveyed his interest thus acquired, to Durand & Hill; and they after wards conveyed to defendant, George W. Ford. Merritt B. Atwater also, about the same time, and Farnsworth the next year, quit-claimed to Ford all their respective interests, which, if anything, consisted of their equities growing out of the contract of Harry R. Talmage and Durand and Hill. In this manner five-sixths of the fee or equity of redemption vested in Ford, leaving one-sixth outstanding in the heirs of Ira Atwater, who are not made parties, unless they are included among the defendants whose interests do not appear. No objection, however, is taken for want of parties, and if those heirs are not among the defendants, they will not be bound by any decree in the case.

A preliminary objection is taken by the counsel for the complainant that, as the equity of redemption is traced to Ford, and no interest of any of the other parties is shown to be affected by the decree, and he has allowed the bill to be taken as confessed, and has not appealed, the appeal ought to be dismissed, or at least, that the decree ought not to be disturbed at the instance of parties who show no interest affected by it. Doubtless such a decree of foreclosure might have been made as would have given great force to such an objection. But this decree is not merely for foreclosure of the mortgage and sale of the mortgaged premises; it makes Farnsworth, the mortgagor, personally liable for any balance of the mortgage debt and costs after the proceeds of sale have been applied, and awards execution therefor. He is, therefore, clearly entitled to contest the validity of the decree upon the merits. The decree also awards costs against all the defendants, and they are, therefore, interested in its reversal.

We must, then, examine the case upon its merits. The complainant proved the assignment by Harry R. Talmage...