Naylor v. Minock

• Citation: 96 Mich. 182,55 N.W. 664
• Court: Supreme Court of Michigan
• Decision Date: 23 June 1893
• Parties: NAYLOR v. MINOCK.

55 N.W. 664

96 Mich. 182

NAYLOR v. MINOCK.

Supreme Court of Michigan

June 23, 1893

Appeal from circuit court, Wayne county, in chancery; George S Hosmer, Judge.

Bill by Jerusha Naylor against John Minock to enjoin the foreclosure of a mortgage. From a decree for complainant, defendant appeals. Affirmed.

F. A. Baker, for appellant.

John D Conely, for appellee.

MONTGOMERY J.

A bill was filed in the Wayne circuit to restrain the foreclosure of a mortgage. The relief prayed for was granted, and the defendant appeals. James Minock and Bridget Minock were husband and wife. The land in question was conveyed to them on the 8th of June, 1846, by a deed in which they are named as grantees, as "James Minock and Bridget Minock, his wife." On the 15th of March, 1882, James Minock had been adjudged insane, and the defendant, his son, had become liable to pay the expenses to be incurred in his defense on a criminal charge, and for maintaining him at the asylum. With the expressed purpose of securing to defendant the repayment of these advances, Bridget Minock, on the 15th of March 1882, executed the mortgage in question, which recites a consideration of $1,000 to the party of the first part, and provides: "The party of the first part has granted, bargained, sold, remised, released, enfeoffed, and confirmed, and by these presents does grant, bargain, sell, remise, release, enfeoff, and confirm, unto the said party of the second part, and to his heirs and assigns forever, all those certain pieces or parcels of land," (a description of which follows,) "together with the hereditaments and appurtenances thereunto belonging, or in any wise appertaining. To have and to hold, the above-bargained premises, unto the said party of the second part, and to his heirs and assigns, to the sole and only proper use, benefit, and behoof of the said party of the second part, his heirs and assigns forever." This grant is followed by the usual defeasance and power of sale, containing the further provision that, on such sale, "to make and execute to the purchaser or purchasers, his, her, or their heirs or assigns forever, good, ample, and sufficient deeds of conveyance in law, pursuant to the statute in such case made and provided."

1. It will be seen that the mortgage does not purport to be given for the debt of the wife, but is given to secure obligations primarily those of her husband, nor was the mortgage given upon what was, at the time of its execution, her separate estate. She and her husband were tenants in the entirety, and neither could convey without the other joining in the conveyance. Fisher v. Provin, 25 Mich. 347; Insurance Co. v. Resh, 40 Mich. 241; Manwaring v. Powell, Id. 371; Allen v. Allen, 47 Mich. 74, 10 N.W. 113; Vinton v. Beamer, 55 Mich. 559, 22 N.W. 40; Lewis' Appeal, 85 Mich. 340, 48 N.W. 580.

2. It is contended, however, that the mortgage debt was wholly for necessaries furnished to James Minock, an insane person, for which his estate, or his right of survivorship, in this farm, were clearly liable, and the giving of the mortgage by Bridget Minock bound her interest or right of survivorship, so that the mortgage was, from the beginning, a perfectly valid security. We do not think this contention can be allowed. The validity of the instrument as a conveyance of an interest in land cannot depend upon the question of whether the moral obligation of the husband to pay or secure the payment is greater or less.

3. It is next contended that, the mortgage evidencing an intent to convey the title to the property described subject to the defeasance, Mrs. Minock and her heirs are estopped from asserting an after-acquired title and hence that when, on her husband's death, the full title vested in her, the mortgage from that moment bound the estate. This contention is based both on the claim that such is the common-law...