Smith v. Fiting

• Decision Date: 20 June 1877
• Citation: 37 Mich. 148
• Court: Michigan Supreme Court
• Parties: Ralph A. Smith v. August C. Fiting and Charles H. Fiting

37 Mich. 148

Ralph A. Smith v. August C. Fiting and Charles H. Fiting

Supreme Court of Michigan

June 20, 1877

Argued June 7, 1877

Appeal from Saginaw. (Tennant, J.)

Foreclosure bill. Defendant appeals. Affirmed.

Decree affirmed, with costs.

D. W C. Gage for complainant and appellee, to the point that defendants should have either affirmed or disaffirmed their contract at once on discovering fraud, and in the latter case tendered a reconveyance, cited Jewett v. Petit, 4 Mich. 508; Wilbur v. Flood 16 Mich. 40; Hubbardston Lumber Co. v. Bates 31 Mich. 158. A purchaser of land who has paid in part, and given his bond and mortgage for the rest of the price, and is in undisturbed possession, will not, in the absence of fraud, be relieved by defects of title from the payment of the bond, or from proceedings on the mortgage. Bumpus v. Platner 1 Johns. Ch. 213; Abbott v. Allen 2 Id 519; Johnson v. Gere 2 Id. 546; Edwards v. Bodine 26 Wend 108; Withers v. Morrell 3 Edw. Ch. 560; Leggett v. M'Carty 2 Id. 124; Griswold v. Atlantic Dock Co. 21 Barb. 225; Farnham v. Hotchkiss 2 Keyes 9; Miller v. Avery 2 Barb. Ch. 582; Hulfish v. O'Brien 20 N.J.Eq. 230; 1 Hilliard on Mortg. 616-618. Entire failure of title is no defense on foreclosure. Rogers v. Place 29 Ind. 580.

Wm. H. Sweet and Wm. A. Clark for defendants and appellants, claiming that when a covenant against encumbrances is broken the purchaser is entitled to detain the purchase money to the extent to which he would be entitled to recover damages upon the covenants, and need not restore possession before making such defense, cited Rawle on Covenants of Title, 111, 137, 673, 687-8; Morris v. Buckley 11 S. & R. 168; Funk v. Voneida Id. 109; Christy v. Reynolds 16 Id. 258; Tod v. Gallagher Id. 261; Ives v. Niles 5 Watts 323; Poyntell v. Spencer 6 Pa.St. 256; Luckett v. Triplett 2 B. Mon. 39; Bowen v. Thrall 28 Vt. 382; Dart on Vendors 381; Prescott v. Trueman 4 Mass. 630; Reasoner v. Edmundson 5 Ind. 393; Bean v. Mayo 5 Greenl. 94; Shearer v. Ranger 22 Pick. 447; Norton v. Babcock 2 Met. 510; Potter v. Taylor 6 Vt. 676; Richardson v. Dorr 5 Vt. 9; Garrison v. Sandford 7 Halst. (N. J.) 261; Wyman v. Ballard 12 Mass. 304; Stewart v. Drake 4 Halst. 139; Tufts v. Adams 8 Pick. 547, 549; Chapel v Bull 17 Mass. 220. The damages resulting from a breach of this covenant is an equitable setoff. 2 Hilliard on Mortg. 181; Irving v. De Kay 10 Paige 319; Rawson v. Copland 3 Barb. Ch. 166; Everson v. Kirtland 4 Paige 628; Waterman on Set-off 416. A covenant of seizin is broken as soon as made, if the covenantor has no title (Catlin v. Hurlburt 3 Vt. 407; Tapley v. Labeaume 1 Mo. 552; Griffin v. Fairbrother 10 Me. 95; Hacker v. Storer 8 Greenl. 232; Bickford v. Page 2 Mas. 455; Caswell v. Wendell 4 Mass. 108; Greenby v. Wilcocks 2 Johns. 1; Hamilton v. Wilson 4 Id. 72; Abbott v. Allen 14 Id. 248; Innes v. Agnew 1 Ohio 386) even if there is no eviction. Mitchell v. Hazen 4 Conn. 495; Pollard v. Dwight 4 Cr. 430; Lot v. Thomas 1 Pennington (N. J.) 407; Duval v. Craig 2 Wheat. 62 n.

OPINION

Marston, J.

Complainant commenced proceedings in the circuit court for the county of Saginaw in chancery for the foreclosure of a mortgage dated March 9th, 1872, given by defendants to secure payment of their promissory notes of even date therewith.

Defendants in their answer admit the giving of the notes and mortgage,--which were given for a part of the purchase price of the lands described in the mortgage. And as a defense they set up that at the time they purchased the land, complainant falsely and fraudulently represented to them and claimed that he was the owner in fee simple of the land conveyed by him to them; that it was free from all encumbrances and that his title thereto was perfect. That relying upon such representations they purchased the land, gave said notes and mortgage to complainant and received from him his warranty deed therefor which contained the usual covenants of seizin and against incumbrances. They then alleged that the representations were false; that he had no title to the land and never did have, and that the lands had been sold prior to 1859 by the State for delinquent taxes, and that one of the parties who after wards claimed title thereto under this tax deed had mortgaged the lands for $ 50. They also allege that they expended considerable money in obtaining the original title to said lands from one James M. Stoddard, and they claim that complainant should not be permitted to enforce payment of said notes until he should make good his representations and perfect their title to the lands, and that the amount they have expended in attempting to perfect their title, as well as all damages they have sustained because of a breach of the covenants of the deed should be deducted from the amount of the mortgage debt.

Defendants shortly after purchasing the land entered into possession thereof and still hold possession of the same.

The charge of false representations made by complainant at the time of the purchase is not sustained. We are not satisfied that any representations such as the law could notice, were made, or if any such were made, that they were not true. The apparent defect in complainant's title at the time he sold to defendants, was caused by a failure to record a deed executed February 21st, 1857, by James M. Stoddard and wife to Martin P. Crompton, through whom complainant claimed title. This however did not divest him of his title to the lands. A person may have an undoubted title to lands although one or more of the conveyances through and by which he acquired his title have not been recorded. It does not appear that any claim has been made by any person against these defendants or those through whom they claim title, under the sale for delinquent taxes for 1856, and after such a lapse of time and no claim made, we think these defendants have no right, so long as they remain in the peaceable possession of the premises, to set up such a conveyance as a defense in this case. If a claim, such as is made in this case, can be set up as a defense upon the foreclosure of a mortgage, or as an equitable set-off, it should not only be satisfactorily proven but the amount to be deducted should be certain. If there was a valid subsisting mortgage sought to be enforced against the premises, the amount thereof might, perhaps, in a case of this kind. be deducted from the amount of the complainant's claim, in order to prevent circuity of action, rather than compel the defendants to resort to their remedy at law upon the covenants in their deed, but such is not the present case. Defendants claim the right "to detain the purchase money to the extent to which they would be entitled to recover damages upon the covenants," and that they are not obliged to restore possession to their vendors before making such a defense. This cannot be done in the present case. If they are entitled to any such damages they...