Miller v. Thompson

Decision Date18 April 1876
Citation34 Mich. 10
CourtMichigan Supreme Court
PartiesSidney D. Miller v. Jonathan Thompson and another

Heard April 7, 1876

Appeal in Chancery from Superior Court of Detroit.

Decree entered in favor of complainant, affirmed, with costs of this court.

John H Bissell and William P. Wells, for complainant.

A. J Chapman, H. M. Cheever and F. A. Baker, for defendants.

OPINION

Cooley, Ch. J.

The bill in this case was filed to foreclose two mortgages given by Sack field Macklin upon lands subsequently sold by him to the defendant Thompson. The deed to Thompson was the usual warranty deed, with the following clause added at the conclusion: "Excepting however, as against two certain mortgages, held by Sidney D. Miller, of Detroit, amounting to six thousand dollars, as of this date, which mortgages the party of the second part assumes and agrees to pay." One of these mortgages had previously by mistake been discharged of record, and the bill sought to have this discharge set aside, and prayed a personal decree against Thompson for the amount found due.

Thompson, by his answer, set up fraud in the insertion in the deed from Macklin to himself of the clause by which he was made chargeable with the payment of the mortgages. He also denied the legal execution of the mortgages, denied that so much was due upon them as was recited in the Macklin deed, and relied upon the discharge of record, which, as has been stated, had been entered as to one of them. In the argument in this court he relied also upon the following points: First, that complainant was not entitled to a personal decree against him because the facts made out no novation which would substitute him as the debtor in place of Macklin; Second, the bill was fatally defective because the mortgagor was not made a party.

The allegation of fraud is not sustained by the evidence. The preponderance of testimony is clearly against it, and Thompson's own conduct after he admits being aware of the exact terms of the deed was inconsistent with the defense he now sets up. He made no complaint for a year and a half making in the meantime payments of interest on the mortgage in full recognition of the whole amount which the deed made chargeable upon him. Nor is Thompson in position to dispute either the legal execution of the mortgages or the amount which Macklin by his deed admits was at that date due and payable upon them. It clearly appears that Thompson in purchasing of Macklin was allowed for the six thousand dollars as a part of the purchase price which was to be paid by him, and the effect of the arrangement was, that Macklin ordered it to be paid to Miller. Thompson has consequently no concern with the question of the legal execution of the mortgages, or with the amount due. He is simply called upon to pay the purchase price in the manner agreed upon between Macklin and himself. If Macklin had legal defenses to the mortgages, he waives them in this arrangement, and if he directs more to be paid to Miller...

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40 cases
  • People's Sav. Bank v. Geistert
    • United States
    • Supreme Court of Michigan
    • April 7, 1931
    ...held by a personal decree for any deficiency which may result from the sale of the premises. Crawford v. Edwards, 33 Mich. 354;Miller v. Thompson, 34 Mich. 10;Taylor v. Whitmore et al., 35 Mich. 97;Higman v. Stewart, 38 Mich. 513;Winans v. Wilkie, 41 Mich. 264, 1 N. W. 1049;Booth v. Conn. M......
  • Winn v. The Lippincott Investment Company
    • United States
    • United States State Supreme Court of Missouri
    • December 18, 1894
    ...... Sidwell. v. Wheaton, 114 Ill. 267; Moore v. Lackey, 53. Miss. 85; Neas' Appeal, 31 Pa. St. 293; Miller v. Thompson, 34 Mich. 10; Meyers v. Bowers, 70. Iowa 95; Freeman v. Auld, 48 N.Y. 50; Cox v. Hoxie, 115 Mass. 120. (6) No formula of words ......
  • McCurdy v. Van Os
    • United States
    • Supreme Court of Michigan
    • October 20, 1939
    ...he is a surety. As between the grantor and his grantee who assumes and agrees to pay the mortgage, the mortgage is in fact paid. Miller v. Thompson, 34 Mich. 10. But that does not affect the rights of the mortgagee who may still have recourse on equitable foreclosure to the liability of bot......
  • Garmon v. Fitzgerald
    • United States
    • United States State Supreme Court of Mississippi
    • January 1, 1934
    ......793, 47 So. 377;. Johnson v. Sanders, 114 So. 334; Scarborough v. Lucas, 119 Miss. 128, 80 So. 521; Leffel v. Miller, 7 So. 324; Allen v. Dicken, 63 Miss. 91; Kelly v. Reid, 57 Miss. 89; Bowers v. Andrews, 52 Miss. 596; Nicholson v. Karpe, 58. Miss. 34; Pearce v. ... secured indebtedness cannot set up a defect in an. acknowledgment. . . Greither. v. Alexander, 15 Iowa 470; Miller v. Thompson, 34. Mich. 10; Hartz v. Emery, 184 Ill. 560, 56 N.E. 865. . . Argued. orally by W. W. Venable, for appellee. . . . ......
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