Stockham v. Cheeney

• Decision Date: 17 June 1886
• Citation: 62 Mich. 10,28 N.W. 692
• Court: Michigan Supreme Court
• Parties: STOCKHAM v. CHEENEY.

28 N.W. 692

62 Mich. 10

STOCKHAM v. CHEENEY.

Supreme Court of Michigan

June 17, 1886

Error to Kent.

J.C. Fitzgerald, for plaintiff and appellant.

Norris & Uhl, for defendant.

MORSE J.

The plaintiff claimed in his declaration in this case that the defendant falsely and fraudulently represented to him, in February, 1884, that he was the owner in fee-simple of 70 acres of land, known as the Underhill farm, in the township of Sparta, Kent county, and that he had a good title thereto free and clear from all incumbrances, except a mortgage of about $1,500 known as the Scott mortgage; that his title was "all straight" and "all right," and that he would give defendant a good title. And the plaintiff being ignorant of the title, and unable to ascertain personally from an abstract of title whether it was good or not believing the statements of the defendant as to such title and relying upon them, purchased said farm of defendant subject to the Scott mortgage, and paid him $1,000. And further avers that the defendant had no title in fee-simple or any title at all, to said premises, and that the premises were incumbered by another mortgage given by one Thomas Feeley to Underhill for something over $500, all of which the defendant well knew at the time of such representations and statements. The plaintiff claimed that by the fraud of the defendant as above stated he had wholly lost the purchase price so paid upon the premises, and other damages, not specifying them, to the amount in all of $5,000. The plea was the general issue. Upon a trial in the Kent circuit court in October, 1885, the presiding judge, Hon. J. BYRON JUDKINS, instructed the jury to find a verdict for the defendant, which they did. The correctness of this instruction upon the whole evidence is submitted to this court.

The plaintiff introduced evidence tending to show that he came from the state of New York in the spring of 1884, and was looking for a farm. He examined the farm in question, and being informed by acquaintances that the defendant owned it, and was a man whose word could be relied upon, he went to Cheeney and asked him if he owned it and wanted to sell it, to both of which inquiries he received an affirmative answer. The price was to be $2,200, out of which the Scott mortgage held by Henry Fralick was to be paid. That Cheeney told him he would give him a good title, and he could have possession as soon as he could get his family from New York. That the deed was made out and the $1,000 paid to Cheeney, who applied enough upon the mortgage held by Fralick so that it was reduced to $1,200, which then represented the balance to be paid by plaintiff. That he did not look at the deed particularly, and that it was read to him by Cheeney. That he did not know the difference between a warranty and a quitclaim deed. That he relied upon the statements of Cheeney that he was getting a good title, and should not have purchased it if he had known the actual condition the title was in. The defendant produced testimony tending to show no fraud upon his part, and that the plaintiff well knew and understood the precise nature of the title, and Cheeney's connection with it.

The following facts may be taken as established on the trial without any particular dispute: In January, 1879, Almeron M Underhill was the owner of the premises. In October, 1881, he sold them to one Thomas Feeley for $2,700, subject to the Scott mortgage. Feeley gave back to Underhill a mortgage for $700 due May 1, 1882. This mortgage not being paid, Feeley having conveyed the premises to one Kieldson, who manifested no desire to lift the incumbrances, Underhill assigned it to the defendant, who foreclosed it under the statute, and received a sheriff's deed on the foreclosure sale, bearing date January 7, 1884, and recorded the same day. That the only title Cheeney had to the premises at the time of plaintiff's purchase was under this sheriff's deed, which did not describe 10 acres of the premises sold to plaintiff, but described another parcel not covered by the mortgage, in its stead, there being three descriptions of land mentioned in the mortgage, and in the...