Morris v. Morris

• Decision Date: 04 June 1858
• Citation: 5 Mich. 171
• Court: Michigan Supreme Court
• Parties: Benjamin B. Morris v. Orville C. Morris

5 Mich. 171

Benjamin B. Morris v. Orville C. Morris

Supreme Court of Michigan

June 4, 1858

Heard May 22, 1858; May 24, 1858 [Syllabus Material] [Syllabus Material]

Appeal by complainant from the Oakland Circuit in chancery.

The bill was in the ordinary from of foreclosure bills, and alleges:

That on the 15th day of August, 1843, Orville C. Morris executed to William Morris thirteen promissory notes, twelve for three hundred dollars each, and the thirteenth for four hundred dollars, and payable from one to thirteen years thereafter--the last six of which are alleged to be unpaid, and to be held by complainant; that, to secure the payment of said notes, said Orville, on the same day, executed to said William a mortgage on certain premises in Oakland county, therein described, which mortgage was duly acknowledged and recorded; that William Morris died in September, 1844, and Elijah S. Fish, Isaac I. Voorhies, and Nathan Davis were appointed by the Probate Court of Oakland administrators on the estate of said William Morris, and took upon themselves that trust; that said administrators, on the 18th day of August, 1848, executed to complainant an assignment of said mortgage, and that the whole amount of said six notes, with interest from date, is now unpaid.

The answer of defendant admits the giving of the notes and mortgage; states that they were given for the purchase price of the premises described in the mortgage; denies that there is anything due on these notes, but says they have been fully satisfied and paid, and that payment is indorsed thereon, and that such indorsement was made by William Morris in his life time.

The cause being put at issue by replication, the parties took proofs, as follows:

The complainant introduced the mortgage and notes, and the assignment thereof, the material part of which was as follows: "For and in consideration of the sum of one dollar, to us, Elijah S. Fish, Isaac I. Voorhies, and Nathan Davis, administrators on the estate of William Morris deceased, paid by Benjamin B. Morris, the receipt whereof is hereby acknowledged, and other good considerations us thereunto moving, we hereby sell, assign, and transfer to the said Benjamin B. Morris, his heirs, representatives, and assigns, a certain indenture of mortgage, made and executed by Orville C. Morris to William Morris, bearing date the 15th day of August, A. D. 1843, and all our right, interest, property, and equity therein and thereto, and the promissory notes accompanying the same which are unpaid, being nine in number, and hereby authorize the said Morris, his heirs, representatives, and assigns to collect the same."

The remaining evidence is fully set forth, and the case sufficiently stated, in the opinion of the court.

Decree affirmed.

Lockwood & Clarke, and C. I. Walker, for complainant:

1. Parties in chancery, as well as at law, are bound by the issues which are formed by the pleadings. Payment of the notes is in this case the single issue upon which the defense is rested. We deny that there is any proof of payment whatever.

2. Payment, both in the sense of lexicographers and law writers, is the delivery of money, or other valuable thing, for the purpose of discharging an antecedent obligation: Busbee's Law, 336; 19 Barb. 460; 4 T. B. Monr., 173; 6 Conn. 373; 11 Pa. S. R., 174.

The indorsements on the notes are merely receipts, and subject to explanation by parol: 1 Aiken 311; 2 Mass. 397; 2 Vt. 138; 21 Ibid. 222; 17 Me. 369; 9 Johns. 310; 12 Ibid. 521; 5 B. & Ald., 606; 3 B. & Adol., 331.

A note can not be discharged without satisfaction, except by release under seal: 13 Johns. 87; 1 Cow. 122. Nothing but actual payment of the debt, or cancellation of the mortgage, will discharge a mortgage: 17 Me. 371; 23 Ibid. 391; 1 Barb. 397. The indorsements here can in no sense be treated as payment.

3. The indorsements, being without legal consideration, constituted a mere gift.

4. Such gift, made by an insolvent debtor, is void as to his creditors, even in the absence of any fraudulent or corrupt intent: 3 Johns. Ch., 481; 4 Ibid. 450; 1 Conn. 525; 1 Am. Lead. Cas., 62; 8 Barr 213; 2 Bland, 26; 1 Wright 213; 2 O. S. R., 273; 4 Wash. C. C., 137; 13 How. 92; 1 Hoff. 419; 3 N. H., 55; 17 Mass. 222.

5. It appearing that the grant was voluntary, and the grantor or donor insolvent, the done must establish affirmatively the fairness of his title, or it will be decreed void as to creditors: 2 Md. Ch. Dec., 447; 3 Ibid. 99; 2 Brock. 132; 25 Miss. 146.

6. An administrator is not only the representative of his intestate, but he is also the trustee for the creditors, to the extent of their interests in the estate. And he may, as the representative of the creditors, treat the voluntary conveyances or gifts of the deceased as void: 15 Me. 430; 17 Mass. 222; 8 Pick. 254; 20 Ibid. 321; 2 Watts. 226; 6 Ibid. 453; 3 Conn. 289; 11 Ibid. 283; 2 Hill 182. Our statute expressly clothes the administrator with this power: Comp. L., § 2913; 10 Paige 218.

The administrators, therefore, in favor of creditors, were authorized to treat such indorsements as fraudulent and void. They had no right to treat them otherwise. It is true defendant, by Davis's testimony, seeks to limit the assignment the administrators made to the amount due on the notes, regarding the indorsements as valid. But this is not a fact which can be proved by parol, in contradiction of the written assignment. If true, it convicts the administrators of conniving at a fraud; which this court will set aside as promptly as if it were the act of the debtor only.

M. L. Drake and M. E. Crofoot, for defendant:

1. The decree of the 11th of April, 1857, was a final order and decree, by which the legality of certain indorsements upon the notes and mortgage was determined in favor of the defendant, upon the hearing on the pleadings and proof, and after considering the arguments of the counsel. It was a decree from which the party complainant, if aggrieved, might have taken his appeal to this court, and no question that was determined in and by that decree, can, owing to the lapse of time, be now reviewed.

By that decree, the entire subject matter in controversy between the parties was determined by the court; and if that can not now be reviewed upon this appeal, there is no further question before the court, in this case, for determination, as there is nothing in the decree of the 2d of December, 1857, save those things which are "matters of course:" 2 Doug. Mich., 299; 2 Barb. Ch., 281; 3 Ibid. 383.

2. The evidence introduced to show that the estate of William Morris was insolvent, and largely indebted to complainant, was received under objection, and is not competent. There is no allegation in the bill, or issue formed by the pleadings, that will justify such proof. There is no allegation that William Morris was insolvent, or that the complainant was a creditor, or that the indorsements upon the notes were fraudulent or void, either as against the complainant or other persons; and evidence tending to prove such facts can not be considered: 10 Wheat. 181; 11 Pet. 249; 7 Wheat. 522; 1 Barb. Ch. Pr., 131, 133; Ibid., 38, 39; Story's Eq. Pl., § 258; Ibid., § 28; Cooper's Eq. Pl., 5, 7; Gres. on Ev., 22, 23; 6 Johns. 564; Mit. Eq. Pl., 43; 2 Mad. Ch. Pr., 228.

3. The bill of complaint does not contain any allegation of any fact or circumstance in anywise connected with the notes or mortgage, which entitles complainant to any relief, or is connected with any equity, that does not appear from an inspection of the notes and mortgage.

4. In the bill of complaint there is made claim only to such rights as were sold and assigned by the executors. They could sell only such things "as were to the testator's use;" and no other rights were acquired by the complainant, as the assignee: Fondblanque, Am. Ed., p. 575; Wms. on Exs., vol. 2, p. 1408.

5. The indorsements were for a lawful purpose, and rightfully made: Jackson v. Peek, 4 Wend. 300.

Campbell, J. Martin, Ch. J. and Christiancy, J. concurred. Manning, J. did not sit in this case.

OPINION

Campbell J.:

The complainant filed his bill, as assignee from the administrators of William Morris, deceased, of six several notes, being part of thirteen originally given, with an accompanying mortgage, executed by the defendant to William Morris on the 15th day of August, 1843. The bill was filed to foreclose the mortgage, and alleged the whole amount of the notes in complainant's hands to be due and unpaid. The bill sets forth the death of William Morris in 1844, and the assignment from his administrators in 1848. It is in the usual form of foreclosure bills, and waives an answer under oath. The answer admits the execution of the mortgage and notes, but leaves the complainant to proof of his assignment. It denies that the notes or any part of them are still due, and alleges that they have been satisfied and paid, and that the payment is indorsed on them, and that such indorsement of payment was made by William Morris in his life time.

Proofs were taken, showing the execution and assignment of the notes and mortgage; and upon the notes, as produced, indorsements appeared, made by William Morris, September 2d, 1844, acknowledging payments to the amount of nineteen hundred dollars. Probate proceedings were proved, showing debts in favor of complainant and others against the estate of William Morris, and that the estate was insolvent.

The evidence of Nathan Davis was also introduced, who testified as follows: "I was acquainted with William Morris (the father of said Orville C. Morris) in his life time. He resided in Bloomfield, Oakland county, in September, 1844."

A note with indorsement in the following words, was then...