Ormsby v. Barr
| Decision Date | 26 October 1870 |
| Citation | 22 Mich. 80 |
| Court | Michigan Supreme Court |
| Parties | Bela W. Ormsby v. Watson Barr |
Heard October 25, 1870
Motion for a rehearing.
This cause was heard at the present term of the court and decided--the court affirming the decree of the court below. See 21 Mich., p. 472.
L. D Norris now moves for a rehearing, upon grounds which are stated in the opinion of the court.
Motion denied.
R Strickland, contra.
Christiancy, J. did not sit in this case.
Cooley J.:
We are asked in this case to grant a rehearing for various reasons, which are very fully presented in the brief of counsel, and which may be summed up as follows: First, that the case was imperfectly presented by counsel on the first hearing; and, second, that the court overlooked important considerations in their decision of the cause.
As to the first reason, we do not agree with counsel upon the matter of fact. We think the case was presented with clearness and ability, and, as we review the brief upon which it was argued for the defendant, it does not occur to us that anything could be added which could tend to a different result.
The supposition that the court may have overlooked important considerations arises, perhaps, from the fact that the written opinion was confined to a determination of the question of fact, and that that question was not discussed at all elaborately with a view to a complete demonstration for the satisfaction of parties, but, on the contrary, our conclusions were stated, as is our usual practice, in terms somewhat general.
So far as the facts are concerned, we thought before, and we think now as we review the case, that they were very fully considered, and that no suggestion made in the brief of counsel, or that presented itself to any of our number, failed to receive due attention. The case was one of an exceedingly unsatisfactory character, and we found it difficult to reach a conclusion upon which we could rely with confidence. It is not too much to say that the same facts embodied in this record, if presented to any tribunal consisting of several persons, would be likely to lead different minds to different conclusions. We felt this very forcibly in the course of our investigations; and we could not resist the conviction that there were some things in the action of each of the principal parties to the transactions involved that were inconsistent with their explanations. But after considering and weighing the conflicting testimony as well as we were able, in connection with the important fact that the securities alleged to be discharged are found in the hands of the debtor with the unquestioned assent of the creditor, we could reach no different conclusion than the one embodied in the previous opinion.
The questions of law were not specially considered before, because we were under the impression that the defendant placed his reliance upon the questions of fact. But as now presented they require some attention. It is said that the court below found defendant estopped from enforcing his mortgage against complainant, while we have gone farther and decreed it satisfied. It is true, we did not decide this case upon the ground of estoppel, but it does not follow that our decree should be different from that of the court below because the same reasons have not influenced our judgment. We have nothing to do with the reasons of the circuit judge, but are only concerned in knowing whether he did or did not reach the correct conclusion. If it had appeared in the case that complainant made his purchase in the belief that the mortgage had been satisfied, and that he was shown that instrument in the possession of the mortgagor as evidence of the payment, we should probably have placed our decision upon the ground of estoppel; but as it did not appear that any such evidence of payment was presented to him before the purchase, we did not rely upon this point, but looked beyond it to the evidence given to show payment in fact. If, upon that, we had reached the conclusion that the mortgage was paid, it is obvious that we could not do otherwise than to affirm the decree. When we do so, we leave the case as it was left in the court below; and the question of actual payment is still open as between mortgagee and mortgagor, though closed as between the former and this complainant.
It is said, also, that the decree ought to have been reversed, and the bill dismissed, because the complainant did not show himself to have been in possession of the lands at the time of filing his bill. The force of this position depends upon the question whether this bill is or is not a bill filed under the statute to quiet the title to lands....
To continue reading
Request your trial
-
General Teamsters Union, Local No. 406 v. Uptown Cleaners & Hatters, Inc.
...equity when the court below arrived at the correct result for other reasons. Langschwager v. Pinney, 351 Mich. 473, 88 N.W.2d 276; Ormsby v. Barr, 22 Mich. 80; County of Ottawa v. Zwagerman, 229 Mich. 501, 201 N.W. No criminal charges are under consideration here. In view of the severabilit......
-
Casgrain v. Hammond
...Bank v. White, 6 Barb., at page 605; Beedle v. Mead, 81 Mo. 297; Comp. Laws, � 448; Rowland v. Doty et al., Har. Ch. (Mich.) 3; Ormsby v. Barr, 22 Mich. 80; v. Carpenter, 37 Mich. 363; Eaton v. Trowbridge, 38 Mich. 454; Allen v. Waldo, 47 Mich. 516, 11 N.W. 366; Cleland et al. v. Casgrain......
-
Welty's Estate v. Wolf's Estate
...consequently fails for want of proof. The contention is answered by an old and valuable presumption--that of continuity, Ormsby v. Barr, 22 Mich. at page 85; Hensel v. Maas, 94 Mich. at page 568, 54 N.W. 381, and Norris v. American Steam Pump Co., 255 Mich. 144, 237 N.W. None of these 3 cas......
-
King v. Carpenter
...in such case possession is not important and has never been required. Salisbury v. Miller 14 Mich. 160; Ormsby v. Barr 21 Mich. 474; and 22 Mich. 80; Jones Smith 22 Mich. 360. The bill in the present case--if established--is very clearly within ordinary principles of equity. It avers compla......