People ex rel. Austin v. Curtis

• Decision Date: 21 October 1879
• Court: Michigan Supreme Court
• Parties: PEOPLE ex rel. AUSTIN et al. v. CURTIS, Register of Deeds. [2]

49 N.W. 923

41 Mich. 723

PEOPLE ex rel. AUSTIN et al. v. CURTIS, Register of Deeds. ^[2]

Supreme Court of Michigan

October 21, 1879

Application by Lyman Austin and others for mandamus to Orrin S. Curtis, as register of deeds of Kalkaska county, to record a deed. The deed in question was placed in the hands of respondent in escrow, and not in his official capacity, with the understanding, as alleged, that he should record the deed when certain conditions should have been performed by the grantees. Afterwards the grantor gave notice to respondent that he should not record the deed. Mandamus denied.

Taggart & Wolcott, for relators. Fallas & McIntyre, for respondent.

PER CURIAM.

The return shows, and the case made by relator is to the same effect, that the respondent did not receive the paper officially, but as a private person, to hold it in escrow. Delivery and record having been forbidden by the grantor, respondent cannot be compelled to decide upon the rights of grantor and grantee, and any controversy between them must be settled in a proper suit in which he would have no personal concern. He never had possession of the document in his official capacity, and has no official duty to perform concerning it. The grantor had no notice of this motion, and no relief could, under any circumstances, be granted against her interest in a proceeding to which she is not a party. But, inasmuch as the real dispute is concerning the grantee's right to the conveyance, a mandamus would not be a suitable form of remedy to determine such a controversy between private parties. The relator must resort to a bill in equity, or such other remedy as may be thought proper, in the usual course of proceeding. The mandamus must be denied, with costs.

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Notes:

^[2] This case, filed October 21, 1879, is now published by request, with others, in order that the Northwestern Reporter may cover all cases in volume 41, Michigan Reports.

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