Warner v. Whittaker

• Decision Date: 09 December 1858
• Citation: 6 Mich. 133
• Court: Michigan Supreme Court
• Parties: William E. Warner, administrator, etc., v. Samuel Whittaker and others

6 Mich. 133

William E. Warner, administrator, etc., v. Samuel Whittaker and others

Supreme Court of Michigan

December 9, 1858

Heard November 17, 1858; November 18, 1858

Appeal by defendants Lucas Vogel and Merrill H. Shaw from the Wayne Circuit in chancery, where decree of foreclosure and sale was made as prayed in the bill.

The case is sufficiently stated in the opinion.

Decree affirmed, with costs.

C O'Flynn, for complainant.

Howard Bishop & Holbrook, for defendants.

OPINION

Manning J.:

The view we have taken of this case renders it unnecessary, in deciding it, to go fully into the pleadings and proofs, which are more voluminous than satisfactory, and throw little light on several questions discussed on the argument, but which it is not necessary for us to investigate in disposing of the case.

The bill, which is to foreclose a mortgage, is filed by Warner as administrator on the estate of Sarah Whittaker, deceased, who, in her life time, and on or about the 3d of May, 1849, sold the mortgaged premises to her son Samuel Whittaker, and received from him the mortgage in question for a part of the purchase money. The mortgage was never recorded, and the bill alleges it is lost or destroyed. The sale to Whittaker, the giving of the mortgage, and the loss or destruction of it, are fully proved. The answer of Whittaker, if it is to be credited, shows he destroyed the mortgage under the pretext his mother had not complied with certain conditions of the sale of the premises to him, and that she had, for that reason, surrendered it to him, and authorized its destruction. It is sufficient to say he has produced no evidence to sustain this part of his answer.

On the 10th of March, 1850, Whittaker sold the premises to Vogel for $ 800, and took from him a bond for $ 550 of the purchase money, payable $ 100 on the 1st of December, 1851, $ 200 on the 1st of May, 1852, and $ 250 on the 1st of October, 1852 with interest. In August, 1852, complainant informed Vogel, by a written notice served on him, of the mortgage given by Whittaker to his mother when he purchased, and of its nonpayment, and that Vogel must not make any further payment on his bond and mortgage to Whittaker. There was then due and to become due on the bond and mortgage about $ 530. On this state of facts, Vogel claims to be a bona fide purchaser without notice; and there is no evidence he had notice of the Whittaker mortgage when he purchased. To constitute a bona fide purchaser there must be want of notice, both at the making of the purchase, and the payment of the purchase money. It is not sufficient Vogel had no notice when he purchased. Notice was given him before he had paid over all the purchase money. So far as he had paid, he was a bona fide purchaser, and to be...