Norton v. Colgrove

• Decision Date: 08 October 1879
• Citation: 41 Mich. 544,3 N.W. 159
• Court: Michigan Supreme Court
• Parties: ERASTUS L. NORTON v. CATHERINE COLGROVE.

3 N.W. 159

41 Mich. 544

ERASTUS L. NORTON v. CATHERINE COLGROVE.

Supreme Court of Michigan

October 8, 1879

Where a vendor of real estate is charged with a duty to make payment and, neglecting so to do, the vendee is compelled to pay for the protection of his interests, the law will imply a promise to repay. Defendant contracted to convey plaintiff certain land clear of certain encumbrances. Defendant, at plaintiff's request, conveyed the land to plaintiff's wife, but having failed to clear off the encumbrances plaintiff was, in order to save his interest, obliged to pay same. Held, that the fact that the conveyance was made to his wife did not prevent plaintiff recovering the money so paid out. Where one other than the covenantor in a covenant against encumbrances has paid the same, the covenantor is liable for nominal damages only.

Error to Eaton.

Henry A. Shaw, for plaintiff in error.

M.V. & R.A. Montgomery, for defendant in error.

COOLEY J.

The plaintiff's case is this: That in August, 1870, in a land trade between defendant and plaintiff, defendant bound herself by a written contract to convey to him a certain piece of land subject to $6,000 encumbrance; she to pay off a large sum over and above the $6,000, which was then a lien on the land; that this excess was to be paid on the first of April, 1871; that the land was conveyed by defendant to plaintiff's wife, at plaintiff's request, on the last day named, but that the defendant did not pay off the excess of the encumbrances as agreed, and plaintiff was obliged to pay large sums to save the land from being taken on foreclosure of the mortgages, and he seeks to recover the amount so paid as money paid to defendant's use.

The objections to a recovery in this case, as they are presented in the defendant's brief, are the following:

1. There was no request by defendant that plaintiff pay this money for her, and consequently he cannot recover as for money paid for her use. But the deduction does not follow from the premise. If the defendant was charged with the duty to make payment, but neglected to do so, and plaintiff was compelled to pay for the protection of his own interest, the law will imply a promise to repay. Hales v. Freeman, 1 B & B. 391; Fosler v. Ley, 2 Bing. N.C. 268; Paroson v. Linton, 5 B. & Ald. 521; Brown v Hodgson, 4 Saund. 187; Hale v. Huse, 10 Gray 99. It was decided in Hunter v. Amidon, 4 Hill, 345, followed in Sargeant v. Cunier, 49 N.H. 310, that a vendor of encumbered property was liable in a court for money paid to the purchaser who had been compelled to discharge the encumbrance in order to retain the property. Such a payment is a compulsory discharge by the vendee of a duty incumbent on the vendor; it is in no sense a voluntary payment.

2. As the land was conveyed by the defendant not to the plaintiff but to the plaintiff's wife, it is argued that the amount of the encumbrance is not a matter of legal concern to the plaintiff, and for that reason an implied promise cannot arise in his favor, even if it might have arisen under other circumstances. This argument assumes that by the conveyance to his wife it is to be assumed that the plaintiff retains no legal interest in the further performance of the defendant's contract, and could suffer no pecuniary injury if the...