Tuttle v. Tuttle

• Decision Date: 04 January 1872
• Court: Michigan Supreme Court
• Parties: Charles N. Terry v. Charles Tuttle and others

24 Mich. 206

Charles N. Terry v. Charles Tuttle and others

Supreme Court of Michigan

January 4, 1872

Heard October 12, 1871

Appeal in chancery from Genesee circuit.

Decree of the circuit court, in chancery, affirmed, with costs of both courts to complainant.

William Newton and M. E. Crofoot, for complainant.

F. H Canfield and Ashley Pond, for defendants.

OPINION

Christiancy Ch. J.

Charles N. Terry, a minor and sole heir of Reuben S. Terry, bye his next friend, filed his bill setting forth, in substance, that his father, Reuben S. Terry, died in the spring of 1865 seized of lots nine and twelve, in block sixteen of the village of Fenton, subject to a mortgage of three hundred dollars to one George W. Nickley, executed by said Reuben S., and his wife, Laura A. Terry; that his father was a soldier in the army of the United States in the late civil war, and died in the army; and that he is informed that there was due to his father, at the time of his death, a certain amount of money or bonds from the township of Fenton, and from the United States; that such moneys or bonds, to the amount of three or four hundred dollars, were received by his mother, Laura A. Terry, or one William Dunham; and that other moneys belonging to the estate of his father, had come into the hands of the mother, or of the said Dunham, at the time of the foreclosure sale mentioned below, which moneys were sufficient to pay the said mortgage; that said Dunham, who is now utterly insolvent, pretended to act as administrator on the estate of said Reuben S. Terry, but avers that he never was such administrator, and had no authority to act as such; that said Dunham and said Laura A., the mother of complainant, combining, etc., with said Nickley, the mortgagee, to defraud complainant, did induce said mortgagee to foreclose said mortgage by advertisement, on the 16th day of January, 1866, for the purpose of placing the title of said lots in said Laura A., and thereby defrauding complainant of his right thereto; that on such pretended foreclosure, said lots nine and twelve were bid off, as one parcel, by said Dunham, for, and in the name of, said Laura A., for three hundred and ten dollars, which was paid from the funds of said estate, and which belonged to complainant; that the sheriff's deed on foreclosure was executed to said Laura A., in fee, and afterwards recorded, etc.; that the sale was fraudulent and void; that at the time of said sale there was a dwelling-house on said lot nine worth twelve hundred dollars, and that lot twelve was vacant; and worth at least three hundred dollars.

Complainant further alleges that his mother, said Laura A., on the 12th of June, 1868, without any consideration received by her, executed a mortgage on said lots nine and twelve, to one John G. Brown (which the evidence shows to have been for one thousand dollars), which is recorded in the register's office, etc.; that said Brown afterwards pretended to assign the same to defendant Charles Tuttle, who, on the 3d of October, 1868, pretended to sell and transfer a portion of said mortgage to defendant James M. Tuttle, which pretended assignments have been recorded, etc.; charges them with notice of all the facts and complainant's title, and, on information and belief, that they paid no valuable consideration; that said Tuttles are now proceeding to foreclose said Brown mortgage by advertisement, the sale to be October 23, 1869; that Nelson Proper, the next friend of complainant, was, on the 23d of February, 1869, duly appointed administrator on said estate, and took peaceable possession of said lots; that complainant is apprehensive that a sale will take place on said pending foreclosure, and thereby cast a cloud upon his title unless enjoined, etc.; prays that the pretended foreclosure of the Nickley mortgage and the deed from the sheriff to his mother may be declared void and that she be decreed to release to complainant; that said Nickley mortgage be declared paid and satisfied; that said Tuttles be decreed to discharge the pretended mortgage executed to Brown, and that the same be declared void as against complainant, and for an injunction restraining them from proceeding with their foreclosure.

The Tuttles alone make any defense, the other defendants allowing the bill to be taken as confessed.

Their answer admits that Reuben S. Terry owned the lots in October, 1863, when he and his wife executed the three-hundred-dollar mortgage to Nickley; they deny all knowledge or notice of any fraud or intended fraud in the foreclosure of said mortgage; say they are ignorant whether the money paid on the foreclosure belonged to the estate, but are informed the foreclosure was in good faith; insist that even if the facts alleged in the bill as to that foreclosure and sale are true, they do not affect their rights; admit the execution of the mortgage by Laura A. Terry to Brown, and that the same was duly recorded, but deny it was executed without consideration, as alleged in the bill; and aver that Brown paid a full and valid consideration, and received the mortgage in good faith; without notice of any irregularities in the foreclosure; admit that Brown assigned the mortgage to Charles Tuttle, and that he assigned a part of it to James M. Tuttle as alleged; and aver that both were given in good faith and for a full and valuable consideration, without notice of any fact which could in any manner affect the validity of the mortgage, and that neither they nor said Brown had any notice of complainant's title or of any fraud or irregularity; admit that they are proceeding to foreclose, and claim the right to do so.

The evidence clearly establishes all the material facts alleged in complainant's bill, so far as respects his rights as the heir of his father, the foreclosure for the mere purpose of vesting the title in his mother, and the payment of the bid from the assets alleged in the bill. It shows that this was done by...