Stephen Griggs v. Detroit & Milwaukee Railway Company

• Decision Date: 29 April 1862
• Citation: 10 Mich. 117
• Court: Michigan Supreme Court
• Parties: Stephen Griggs v. The Detroit & Milwaukee Railway Company and others

10 Mich. 117

Stephen Griggs v. The Detroit & Milwaukee Railway Company and others

Supreme Court of Michigan

April 29, 1862

Heard July 11, 1861 [Syllabus Material]

Appeal in Chancery from Wayne Circuit. The case is fully stated in the opinion.

Decree affirmed, with costs.

D. C Holbrook, for complainant:

A bill to have the decree executed was proper: Welf. Eq. Pl., 249; Cooper Eq. Pl., 98; Story Eq. Pl., 429.

But if the court should think the decree should not be enforced then Griggs is entitled to a foreclosure, since no valid defense is set up in the answer.

Incumbrances or defective title constitute no defense to a mortgage for the purchase money, unless the purchaser has been ousted, or has paid the incumbrances: 26 Wend. 109; 25 Wend. 113; 3 Edw. Ch., 124; 2 Wheat. 13; 2 McLean 464; 17 Wend. 188; 8 S. & M., 727; 3 Sandf. S. C., 118; 2 Barb. Ch., 594.

The pretended incumbrances are not alleged in the answer to have been recorded prior to the purchase of Firby; and by the pleadings, these incumbrances, therefore, are not shown to be valid prior liens.

A. Pond, for defendants:

The decree which the bill sets forth, was a bar to this bill as an original bill for the foreclosure of the mortgage: 2 Daniels Ch. Pr., 753 et seq.; Mit. Eq. Pl., 248; Cooper Eq. Pl., 273; Story Eq. Pl., §§ 736, 738, 740; 3 Paige 509; 5 Wis. 151. That decree being in part in favor of the complainant here, his proper course was to apply by petition and obtain leave to carry it into execution, if the complainants in the case neglected and refused to do so, as he alleges: 2 Dan. Ch. Pr., 1348 et seq.; Story Eq. Pl., § 740; 7 Hare 331; 11 Paige 147. And if it was defective for want of necessary parties, having obtained leave to carry it into execution, he should have filed a supplemental bill to perfect it: 17 E. L. & E., 265; S. C., 19 E. L. & E., 244.

Waiving all questions as to the form of this decree, it can not be sustained as substantially a decree for the execution of said prior decree, under the prayer in that behalf in the bill: Because said prior decree at the time this decree was rendered did not exist. It had been regularly opened, under the statute: Comp. L., § 3543; Wal. Ch., 305.

If it be held that the bill is sustainable as an original bill for the foreclosure of the mortgage, then of course the whole case is open, and defendants are entitled to set up any defense that may exist to such foreclosure. And the outstanding prior incumbrances upon the premises shown by the answer and stipulation should be deducted from the amount due upon the mortgage: 3 P. Wms., 306; 1 S. & R., 437; 2 Johns. Ch., 546; 1 Green Ch., 407; 1 Green Ch., 467; 1 Rand. 72; 7 Ind. 533; 7 Gratt. 399.

The case of Abbott v. Allen, 2 Johns. Ch., 522, and analogous cases based upon it, are clearly distinguishable from this case. They hold only that a "mere defect of title" is no defense to an action for the purchase money. In Abbott v. Allen, the Chancellor says he expresses no opinion as to "whether or not the injunction ought to stand if there had been a previous eviction, or if there was an existing incumbrance which appeared to admit of no dispute," which is the case here. What his opinion was, upon this point, is shown by the case of Johnson v. Gere, 2 Johns. Ch., 546. See also 1 Green Ch., 412.

Manning, J. Martin, Ch. J. and Christiancy, J. concurred. Campbell, J. did not sit in the case.

OPINION

Manning J.:

In 1854, Thomas Firby sold to the Detroit & Pontiac Railroad Company, now the Detroit & Milwaukee Railway Company, three lots situate in the city of Detroit, numbered 11, 12 and 13, and conveyed the same to the company by a warranty deed, with a covenant against incumbrances, and took back a mortgage on the same premises for $ 16,000, a part of the purchase money. Firby assigned the mortgage to C. & A. Ives. The assignment was absolute on its face, but was given as security for a debt that Firby was owing them. Firby afterwards assigned the same mortgage to complainant Griggs, to secure a debts he was owing Griggs. The Iveses filed a bill against the railway company to foreclose the mortgage, making John M. Forbes, John W. Brooks and complainant, parties defendants as subsequent purchasers or incumbrancers. The subpoena was personally served on the railway company and on Griggs. Forbes and Brooks being non-resident defendants, and not appearing, the bill was taken as confessed against them under the statute. It was also taken as confessed by the railway company. Griggs appeared and answered, stating, among other things, that the assignment to the Iveses was intended as security only for what Firby was owing them, and the subsequent assignment to himself to secure what Firby was owing him. On February 8th, 1858, a decree was entered, stating the amount due on the mortgage from the railway company (for the whole of the mortgage debt was not then due), and directing the payment of the debt Firby was owing the Iveses, amounting to $ 6,308.01, and the payment of $ 3,289.33 to Griggs, that being the amount then due on what Firby was owing him.

The bill in the present case is filed by Griggs against all of the parties to the former bill, and against the following persons who were not parties to that bill, viz: Thomas Firby, Erastus Corning, Frederick C. Gebbard, George F. Porter, Charles J. Brydges, Thomas Reynolds, Henry C. R. Beecher, John Owen, James V. Campbell, Jared C. Warner and Matilda Firby. After setting forth the several facts already mentioned, the bill states, on information and belief, that the railway company had made some kind of mortgages or other conveyances of the premises to Brydges, Reynolds and Beecher, as trustees for parties unknown to complainant; that they had purchased of the Iveses the aforesaid mortgage and decree; that they claimed to be the owners thereof and to control the decree; and that they refused to execute the decree by a sale of the mortgaged premises. The other defendants, who were not parties to the first bill, are stated as having, or claiming to have, some right or interest in the mortgaged premises, as subsequent purchasers, incumbrancers or otherwise. And the bill concludes with a prayer for an execution of the Ives decree, or a foreclosure of the mortgage on which that decree was entered, and the general prayer for other or further relief.

The railway company, Brydges, Reynolds, Beecher, Owen, Campbell and Porter, put in answer admitting all the statements in the bill except the purchase of the Ives decree, which it states was purchased by Brydges and Reynolds in their individual capacity and not as trustees, and that Beecher was not a party to the purchase. It also states that on the 9th of November, 1859, Forbes and Brooks, under the statute providing for such cases, filed a petition in the Ives foreclosure suit for leave to answer the bill in that cause; that leave was granted, and that they thereupon filed an answer, and that no further proceedings had been had in that cause. The answer also states that lots 11 and 12 were incumbered by a mortgage, given by William Gooding, when he was owner of the lots, to Aretus Wilder, dated September 27th, 1850, for $ 4,000 and interest. And that lot 13 was also incumbered by a mortgage given by Firby and wife and Thomas Wood and wife, when they owned the lot together, to Joseph Penny, on the 27th May, 1852, for $ 2,500 and interest; that the Wilder mortgage, so far as appeared of record, had not been paid or discharged, in whole or in part: that the Penny mortgage had been foreclosed by the mortgagee against the mortgagor, and lot 13 sold under the decree on the 8th July, 1858, to D. Bethune Duffield, for $ 1,554.85. These mortgages the answer insists should be deducted from the mortgage given by the railroad company.

Firby and wife and the Iveses also answered, but as no question arises on either of their answers, it is not necessary to notice them...