Poole v. Horton
| Decision Date | 28 January 1881 |
| Citation | 8 N.W. 59,45 Mich. 404 |
| Court | Michigan Supreme Court |
| Parties | POOLE v. HORTON and another. |
In an action to foreclose a mortgage, interests of certain of defendants appearing to be paramount to the mortgage sought to be foreclosed, held that, as to them, the bill should have been dismissed; and that a provision in the mortgage under which such defendants claimed that same was to be "null and void," in a certain contingency, was available only by the persons for whose benefit it was inserted. Consent by subsequent grantee of land to the giving of a new mortgage to correct a former one given by a prior owner, held, equivalent to uniting in such new mortgage.
Appeal from St. Clair.
Brown & Farrand, for complainant.
A.E Chadwick and O'Brien J. Atkinson, for defendants and appellants.
On the eighteenth day of January, 1875, Carlos D. Horton, in order to secure the payment of promissory notes amounting in all to $2,950, gave a mortgage to Herbert W. Pool upon lands in the city of Port Huron described as follows: The undivided one-half of the undivided one-quarter of lots Nos. 1, 2 and 3, east of Commercial street, and 11, 12, 13 and 14 south of Quay street, all of Thorn's plat, and the undivided half of lot 5, in block 100, and of a part of lot 5, of block 106 both of White's plat, being the so-called homestead on Walter street. The mortgage contained a provision that it was "subject to the life use and interest in said property of Rebecca Horton, mother of Carlos D. Horton and in no event to be foreclosed until the termination of such life estate."
On the fifteenth day of October following, Rebecca Horton, Carlos D Horton and Ettie M. Beard, the first having her life estate as above, and the last being owner of an undivided one-eighth subject to said life estate, and having been such owner previous to the giving of the mortgage to Pool, joined in a deed to William B. Hibbard and John Hibbard of lands in Port Huron aforesaid described as follows: The undivided one-fourth of lots 10, 11, 12, 13, 14, 15, 16, 17 and 18, south of Quay street, and lot 1, east side of Commercial street, on Thorn's plat. On January 10th following the Hibbards gave back to the grantors what seems to have been intended as a purchase-money mortgage for $2,800, but with the following stipulation contained therein: "It is also agreed by Carlos D. Horton one of said second parties that he will pay off and obtain a release of a certain mortgage this day executed to one Herbert W. Pool upon the interest of him, said Carlos D. Horton, in the above-described lots, for the sum of $2,950, it being further agreed that this mortgage is to be null and void unless the Pool mortgage is discharged to the extent of the notes herewith given, on or before the maturing of notes collateral hereto." A further clause was as follows: "This mortgage being given for a part of the purchase money on premises described. and in place of one dated October 15, 1875, and to correct a mistake therein."
The mortgage mentioned in the above stipulation was given as there indicated on the tenth day of January, 1876, by Carlos D. Horton to Herbert W. Pool, to secure the same debt specified in the first mortgage above described, and the premises are described therein as follows: The undivided one-half of the undivided one-quarter of lot No. 1 east of Commercial street, and lots Nos. 10, 11, 12, 13, 14, 15, 16, 17 and 18 south of Quay street, all of Thorn's plat; the undivided one-half of lot No. 5 of block 100 and a part of lot No. 5 of block 106 of White's plat, being the Horton homestead on Water street, all in the city of Port Huron-- The mortgage was payable in five annual payments of $590 each, the first to be made January 18, 1876. Annexed to it was the following:
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