Potter v. Smith

• Decision Date: 19 January 1888
• Citation: 68 Mich. 212,35 N.W. 916
• Court: Michigan Supreme Court
• Parties: POTTER v. SMITH et al.

35 N.W. 916

68 Mich. 212

POTTER v. SMITH et al.

Supreme Court of Michigan

January 19, 1888

Appeal from circuit court, Berrien county, in chancery.

This is a bill to quiet title to certain lots in St. Joseph, filed by Sophronia Potter, against George E. Smith, Warren Chapman Susan V. Hoyt, Grace Hoyt, and Joseph W. Brewer, assignee in bankruptcy of Benjamin C. Hoyt. The circuit court dismissed complainant's bill as to two of the lots, and decreed the title to the other in her, and that defendants Smith, Brewer and Chapman release and quitclaim the same to her. Both parties appeal.

Clapp &amp Bridgman, for plaintiff.

Edward Bacon, for defendants.

MORSE J.

The complainant files her bill to quiet her title to lots 300 301, and 302, in the village of St. Joseph. She claims that her father, Benjamin C. Hoyt, made a gift in parol of these lots to her in the year 1859; that she moved into the dwelling-house upon one of them, and has resided there ever since with her husband and family, claiming and holding the same adversely against all the world, the three lots being inclosed by one fence. The proofs show that, under some arrangement with her father, she did move into the house, and take possession of the premises, some time in the year 1859, and that she has lived there ever since, claiming the same as her own, at least ever since the year 1874. The bill of complaint was filed July 10, 1882. The character of her occupancy of the premises prior to 1874 is not as definitely and satisfactorily established as we could wish. The testimony of Benjamin C. Hoyt, her father, was not taken, although he is now living at Aberdeen, Mississippi. The complainant testifies that her father called at her house, and asked her and her husband to go up and look at the place. "He said, if I like it, I might have it for a home; if I liked it, I might move into it, and have it for a home." When she asked him afterwards for a deed, her father said she should have it some time, but that it was better as it was then, as she might sell it and be without a home. Her husband, F.A. Potter, corroborates her as to the gift. But it appears that on the fifth day of July, 1859, Benjamin C. Hoyt borrowed $500 of Daniel N. Hoyt and George V. Griffin, his brother and brother-in-law, and gave his note therefor. He secured this note by a mortgage of the same date upon lots 300 and 301. The giving and existence of this mortgage was ascertained soon after by both complainant and her husband, and no steps were ever taken, previous to the filing of the bill of complaint in this cause, by either of them, in disaffirmance of said mortgage. The interest upon the mortgage was paid by Hoyt or some one up to November 5, 1872. F.A. Potter testifies that when he learned of the mortgage he spoke to Mr. Hoyt about it. Hoyt said to Potter that he only borrowed the money for a short time; that he did not put the mortgage on any of his lots, because they were for sale, and it might interfere with the sale of them; and that Potter need give himself "no uneasiness about the mortgage, as he should remove it soon anyway. This mortgage was foreclosed by advertisement by Hoyt and Griffin, the premises sold, and bid in by them, and a sheriff's deed upon such sale issued to them August 11, 1874. After such foreclosure and sale, and before the redemption expired, negotiations were entered into between the complainant, by her husband and his brothers, who were acting as her attorneys, and Mr. Griffin, looking towards the payment of the mortgage by complainant, and the deeding of the premises to her by quitclaim on the part of the mortgagees. These negotiations were not concluded; but at no time while they were going on did complainant, or any one acting in her behalf, intimate that the mortgage was not a valid lien upon the premises. In 1873, Benjamin C. Hoyt failed. About this time he executed a deed of assignment of his property, for benefit of his creditors, to one Lyman Collins. In this deed he mentioned and conveyed the three lots in controversy here. The deed bore date of November 28, 1883. March 24, 1869, Hoyt conveyed lot No. 300 to his son Enoch C. Hoyt. This deed was found among Enoch's papers after his death, and then recorded on the third day of March, 1874. June 1, 1874, Benjamin C. Hoyt was adjudicated a bankrupt in the United States court, and Joseph W. Brewer appointed his assignee. Such assignee has never been discharged. ...