Morse v. Byam

• Decision Date: 14 January 1885
• Citation: 55 Mich. 594,22 N.W. 54
• Court: Michigan Supreme Court
• Parties: MORSE v. BYAM.

22 N.W. 54

55 Mich. 594

MORSE v. BYAM.

Supreme Court of Michigan

January 14, 1885

Error to Genesee.

Holden & Harris, for plaintiffs and appellants.

Long &amp Gold, for defendant.

COOLEY C.J.

This is an action of ejectment, to recover two 40-acre lots of land in the township of Montrose, Genesee county. The two lots were purchased of the government by Dudley Gilman in 1854. In 1866 Gilman sold and conveyed them to his son William, who two years later sold and conveyed to the plaintiff Morse. Morse leased the land to one Cole, who went into possession but five or six years later repudiated the tenancy, and notified Morse he had purchased the land of one Cotharin. Morse took no action at the time to enforce his rights against Cole, but in 1880 he deeded an undivided half of the lots to the other plaintiff, Perkins and the two afterwards united in bringing this suit. The defendant claims title as follows: In March, 1868, while William Gilman was owner, he mortgaged one of two lots to Edward Clark for $100. Clark subsequently assigned the mortgage to Cotharin. The plaintiff Morse, when he bought of William Gilman, gave back a mortgage of the two lots for $136.04, and this mortgage, also, was assigned to Cotharin. Some question is made of the sufficiency of the proof of these assignments, but we think without sufficient reason.

While Cotharin held the two mortgages he undertook to foreclose the same under the power of sale contained therein, and for that purpose united the two in one advertisement of sale, and caused both parcels to be struck off to himself on one bid, and for one gross sum. As one of the mortgages covered but one of the parcels of land, this was clearly irregular. There were other irregularities, but they need not now be mentioned, as the one specified was fatal to the foreclosure. Cotharin, however, claimed title under these proceedings, and on August 26, 1872, sold and conveyed the land to Cole, the tenant of Morse. Cole from that time until December, 1879, occupied the land to the knowledge of Morse, claiming to be owner, and then sold to defendant, Byam, for the sum of $1,400, of which Byam paid $200 down. The bargain was that Byam was to take the land subject to a mortgage of $1,200 to Cotharin, and Morse being a justice of the peace, Byam employed him to draw the papers on this sale. He did draw them, and took the acknowledgment of Cole to the conveyance, with full knowledge that Byam was purchasing and Cole was conveying the same land which he (Morse) had formerly owned. This is testified by himself very fully and frankly, and he also testifies that he did not at the time make any claim to the land himself, or apprise Byam that Cole was not the owner.

The circuit judge, in summing up the case to the jury, stated the facts and his own view of the law on this part of the case as follows: "It appears from the proofs that the defendant here is a bona fide purchaser of the property, and that he bought relying upon the title of Cotharin; that he paid somewhere in the neighborhood of $1,400 for it, paying down a portion of the money at the time the deed was given to him, and giving back a mortgage for some $1,700, which he afterwards paid. It further appears that during all that time the plaintiff Morse knew--in fact knew when the defendant bought of Cole--that he was to buy the property and pay so much for it, and that no objection was made by him, and no claim of irregularity or invalidity in the proceedings was urged by him against the foreclosure; that he drew the deed; that he took the acknowledgment; that he was silent; that he made no objection and no disclosure of any claim of irregularity in the proceedings. I therefore charge you, gentlemen, that the sale under the two mortgages may have been irregular, and, perhaps, may have been regarded void if proper proceedings had been taken with reasonable diligence by the plaintiff Morse to investigate the proceedings and to have them set aside. But if Morse was informed of Cotharin's proceedings to foreclose the mortgages, and of Cotharin's claim to the title of this land, and claim of right to convey the same, and of his dealings with the title as his own; also that he had sold the same to Cole, who Morse claimed was his tenant; and if he knew the defendant was about to purchase and pay $1,400 for the property, part cash and part on a mortgage; and if he drew the deed from Cole to the defendant, knowing that Cole had no other title than that which Cotharin had acquired by the foreclosure; and if at that time he had abandoned the land and suffered Byam to purchase it, relying upon the validity of Cotharin's title; and if the plaintiff Morse at that time made no claim to the land,--defendant would be warranted in believing that Morse had assented to the regularity and validity of the foreclosure and proceedings, and had waived any objections to their irregularity. While his silence would not operate to make such proceedings regular, or to transfer the legal estate out of him, yet his conduct...