Young v. McKee
| Decision Date | 31 October 1865 |
| Citation | 13 Mich. 552 |
| Court | Michigan Supreme Court |
| Parties | Archibald Young v. Catherine McKee and Frederick McKee |
Heard October 12, 1865
Appeal in chancery from St. Clair circuit.
The facts are sufficiently stated in the opinion.
Conger & Harris, and William T. Mitchell, for complainant.
D. C Holbrook, for defendants.
Cooley J.:
The complainant filed his bill to foreclose a mortgage given by the defendant Catherine McKee to Malcom Cameron, for the difference between certain lands exchanged by said Cameron with Frederick McKee, the other defendant. McKee, instead of taking a conveyance of the Cameron lands to himself, caused them to be deeded to said Catherine, who is his wife; and she united with him in notes for the difference agreed to be paid to Cameron, and the mortgage in controversy was given to secure these notes. In the bill, complainant avers that the mortgage and notes were assigned by Cameron to Henry Wilcox, and by said Wilcox to complainant; and he claims the benefit of an equitable lien on the premises as fully and completely as though no mortgage had been executed.
Frederick McKee has allowed the bill to be taken as confessed by him; but Catherine appeared and answered, admitting the execution of the notes and mortgage, but averring that she was at the time an infant, and she now disaffirms the same, and claims the benefit of a demurrer to all that part of the bill which claims a lien on the premises. The answer is silent on the subject of the assignments. The court below adjudged an equitable lien to exist for the purchase money represented by the notes and mortgage, and the defendant Catherine appealed.
It is object in this court that the record discloses no proof of any assignments of the mortgage and notes, and consequently complainant has failed to establish his title thereto. It is very apparent from the record that the contest in the court below was on the question of infancy alone; and the answer making no response to the allegations of the bill relative to the assignments, it is quite probable that the rule that nothing is admitted by an answer in chancery unless expressly admitted (Morris v. Morris, 5 Mich. 171; Morris v. Hoyt, 11 Mich. 9), was overlooked by the complainant's counsel. Indeed, the answer was well calculated to lead the opposite party to suppose that no question was to be made of complainant's right to the papers; and we think, therefore, that he is entitled to the most liberal construction of any evidence appearing in the case bearing upon that point.
The only evidence which appears is contained in the record of a prior cause, wherein Mrs. McKee was complainant, and Henry Wilcox and Asa D. Dickinson were defendants, which was put in evidence by consent. In that case, Wilcox was sworn as a witness; and in speaking of the mortgage now in controversy, he said: "I subsequently became the owner of the Cameron mortgage, and I sold it, and proceedings have been taken to foreclose it." Again he says: "The mortgage was assigned to Mr. Young, as security for whatever I traded with him." No objection was made to this evidence for want of competency; and as a sale with mere delivery would have passed the mortgage title (Dougherty v. Randall, 3 Mich. 581), we may fairly consider this evidence sufficient to show the transfers, provided it satisfactorily identifies the last assignee. The only difficulty in that respect is, that Wilcox, in his testimony, had named two Mr. Youngs-- Archibald and E. J.--and he does not positively indicate which of the two was his assignee of this mortgage. In the same connection, however, he speaks of another mortgage being transferred to Mr. Young--evidently referring to the same Mr. Young to whom he had assigned, and as, in another part of his testimony, proceedings in chancery in reference to that mortgage are mentioned, to which Archibald Young is a party, the inference that he is the person intended at this point is so strong that we think we are warranted in acting upon it in this case. If defendant doubted his being the real assignee of the demand, she had an opportunity to make the proof more definite upon the point; but having waived any contest in regard to it in the court below, and left the other party to suppose that she was satisfied in that particular, we do not think she has a right to require us to be very critical in our examination of the evidence on this appeal.
The question upon the merits is, whether complainant has any lien upon the premises described in the mortgage for the...
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