McKesson v. Davenport

• Decision Date: 14 November 1890
• Court: Michigan Supreme Court
• Parties: MCKESSON et al. v. DAVENPORT et al.

47 N.W. 100

83 Mich. 211

MCKESSON et al. v. DAVENPORT et al.

Supreme Court of Michigan

November 14, 1890

Appeal from circuit court, Eaton county, in chancery; FRANK A HOOKER, Judge.

H. A. Shaw, for appellants.

Boudeman & Adams, for appellees.

CHAMPLIN C.J.

This is a bill in equity, but there is no equity in the bill. Complainants allege that they are joint owners of the N.W 1/4 of section 25, in township 2 N., range 3 W. That, on September 1, 1863, Ira Davenport conveyed the E. 1/2 of the above-described land to John W. Reed, and took back a purchase-money mortgage for $440 secured upon the land sold. That on the same day the complainant Isaac McKesson purchased from said Ira Davenport the W. 1/2 of the N.W. 1/4, and to secure a part of the purchase money gave to said Ira Davenport a mortgage upon the land purchased by him of $440. Both mortgages were payable three years from the date thereof. That, on October 6, 1864, John W. Reed conveyed to Edgar J. Reed; and, on February 28, 1866, McKesson purchased the E. 1/2 of the N.W. 1/4 from Edgar J. Reed, taking a deed subject to the mortgage to Davenport. The bill then sets up several conveyances by way of deed and mortgage those made by him conveying subject to the two mortgages to Davenport, until, in 1873, McKesson again became the owner of the quarter section. The bill shows that all of his title and right to the land was derived from Ira Davenport, and based upon the two conveyances first above mentioned. He states that Davenport's title was based upon several tax-titles from the state of Michigan, but he nowhere states that he acquired the title from the owner of the original title while the answer and the proofs show that Davenport was at the time of the conveyances to McKesson and to Reed the owner of the original title, and the proofs further show that McKesson knew that fact long before he filed his bill in this case; and yet he charges that there was a question about the title conveyed by Davenport because of the original title outstanding. He further states that one John M. Corbin acquired three tax-titles on the land, for the years 1876, 1877, 1878, and he induced his wife, (now deceased,) the mother of complainant Mary Waggoner, to buy such tax-titles, and Corbin executed a quitclaim deed to her for $500, dated April 12, 1880; and that he, to secure his wife the payment of $1,800, executed to her a trust-deed upon the undivided half of the 160 acres. This deed was made expressly subject to the Davenport mortgages, and to her tax-deed, which was not executed by Corbin until two days after this trust-deed containing the reference to it. The purchase of these tax-titles did not create an adverse title in McKesson or his wife. It was merely the payment of taxes which he, as holder of or interested in the legal title procured from Davenport, was in duty bound to pay. But if otherwise, the tax-titles so purchased by Corbin were by the proofs introduced in the case shown to be void. The bill charges that these mortgages belonging to the estate of Ira Davenport are a cloud upon complainant's title, because no interest has been paid upon either of them since September 1, 1867, and that they should be presumed to have been paid, and be canceled and discharged of record. And he relies upon the statute passed by the legislature of this state in 1879, which reads as follows: "No suit or proceeding shall be maintained to foreclose a mortgage on real estate, either at law or in equity, unless commenced within fifteen years from and after such mortgage shall become due and payable, or within fifteen years after the last payment was made on said mortgage: provided, however, that this act shall not be construed to apply to mortgages which have been due fifteen years or more, or the last payment upon which was made fifteen years or more prior to the passage of this act, but, in all such cases, no suit or proceedings shall be maintained to foreclose the same, unless commenced within five years after this act shall take effect." Laws 1879, Act No. 204. The proceedings to foreclose the mortgages in question were commenced on the 16th day of May, 1887, and this bill was filed in February following. The mortgages became due and payable September 1, 1866, and the last payments were made September 1, 1867. It will therefore be seen that the proviso in the statute does not apply to these mortgages. If the time when the statute should begin to run be fixed at the date when the mortgages were payable, then the time would expire and be barred September 1, 1881; and if the time runs from date of last payment, the action, under the statute, would expire September 1, 1882. The complainant insists that this act is a bar to foreclosure, and defendants contend that the statute ought not to be construed as retroactive, except as to the cases mentioned in the proviso, which expressly applies to mortgages which have been past due more than 15 years, and no payments made upon them within 15 years; that, as to mortgages given within that time, and before the passage of the act, they are left to be controlled under the law and decisions which existed at the date of the passage of the act. This court has repeatedly recognized the doctrine that while the statute of limitations is to be favorably regarded by the courts, as being one of repose as well as of presumption of payment, affording security against state claims, yet injustice must not be done by an undue strictness of construction, nor the statute be defeated by such construction, but the legislative intent must be carried into effect. Ten Eyck v. Wing, 1 Mich. 40; Jewett v. Petit, 4 Mich. 508; Jenny v. Perkins, 17 Mich. 28; Gorman v. Judge, 27 Mich. 138; Palmer v. Palmer, 36 Mich. 487; Toll v. Wright, 37 Mich. 93; Proctor v. Bigelow, 38 Mich. 282. We have also held that statutes of limitations must be construed to...