Powell v. Smith
| Decision Date | 27 October 1874 |
| Citation | 30 Mich. 451 |
| Court | Michigan Supreme Court |
| Parties | James Powell and another v. Ephraim D. Smith and others |
Heard October 23, 1874
Appeal in Chancery from Wayne Circuit.
This was a bill to foreclose a mortgage, dated August 1, 1852, and executed by defendant Smith, and his wife, to secure his promissory note of even date, for one hundred and fifty-six dollars and twenty-six cents. Defendant Evans subsequently purchased the mortgaged premises, and while he was owner of the same, paid to the holders of the mortgage the amount due upon it, and took an assignment there of to himself. He afterwards borrowed two hundred dollars of William Powell giving his promissory note therefor, and assigning said mortgage to Powell as collateral security for the payment of such note. The assignment to Evans and his assignment to Powell were both put upon record at the same time. Evans paid the interest on his note for several years, and subsequently conveyed the premises by full warranty deed to one Thomas Crawford, who took possession and held them until his death and his heirs have since continued in possession. William Powell having died, the complainants were appointed administrators of his estate, and brought this bill. Decree having been rendered for the defendants, the complainants appealed.
Decree set aside, and case remitted with directions to enter a decree for complainants as prayed in the bill, with costs.
Levi L Barbour and Hoyt Post, for complainants, were stopped by the court.
Moore & Moore, for defendants.
The owner of lands who treats a mortgage upon the lands, which has been assigned to him, as a valid instrument, and transfers it as such, is estopped from insisting, as against the assignee or any one claiming under him, that in his hands it had merged and disappeared in the fee. There is nothing to take this case out of the rule. It is immaterial that remedy at law upon the note which accompanied the mortgage was barred; that would not affect the validity of the mortgage or the remedy upon it: Mich. Ins. Co. v. Brown, 11 Mich. 265. It is also immaterial that the owner of the lands subsequently sold them. Had the purchaser bought before the assignment of the mortgage by his grantor was recorded, he would have had a right to understand that the mortgage was merged; but in this case the two assignments,--the one to his grantor and the one by him,--were both...
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Gerardi v. Christie
...v. Hunt, 66 Mo.App. 527; Kellogg v. Ames, 41 N.Y. 259; Wallach v. Schulze, 22 A.D. 57; Jones on Mortgages (5 Ed.), sec. 853; Powell v. Smith, 30 Mich. 451; Goodwin Kene, 47 Conn. 486; Pingree on Mortgages, sec. 1066. OPINION GOODE, J. This action is in the nature of a suit in chancery and w......
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Thompson v. Hudgens
...the absence of fraud, accident or mistake. There can, of course, be no estoppel as to matters not included in the contract." In Powell v. Smith, 30 Mich. 451, it was held, syllabus: "The owner of lands who treats a mortgage upon the same, which has been assigned to him, as a valid instrumen......
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Guardian Depositors' Corp. v. Wagner
...upon a note which accompanied the mortgage was barred. That would not affect the validity of the mortgage or the remedy upon it, Powell v. Smith, 30 Mich. 451, which remedy may be enforced although action on the debt secured or the evidence thereof is barred. 37 C.J. p. 703. When suit is br......
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... ... Enc. of Law, 1064. Among the many cases cited ... in support of this are the following Michigan cases: ... Bassett v. Hathaway, 9 Mich. 28; Powell v ... Smith, 30 Mich. 451; [133 Mich. 206] Ann Arbor Sav ... Bank v. Webb, 56 Mich. 377, 23 N.W. 51; Cook v ... Foster, 96 Mich. 613, 55 N.W ... ...