Gorham v. Arnold

22 Mich. 247, 1871 Mich. LEXIS 15

• Court: Michigan Supreme Court
• Decided: January 10, 1871
• Status: Published

Opinion

Campbell, Ch. J.

The questions in this case all resolve themselves into the single inquiry whether the title involved was one subject to levy and sale on execution.

The question of estoppel cannot have any significance, because there was no concealment or misunderstanding of facts in any way due to the parties alleged to have been estopped. The mistake made, if any, was one of law; and npon that no estoppel could arise unless under very peculiar circumstances, if at all.

When the same substantial facts were before us in Gorham v. Wing, 10 Mich. R., 492, it was very plainly intimated, though not decided, that the rights levied upon were purely equitable, and therefore not subject to levy under the laws existing at the time. An equity of redemption under an ordinary mortgage is always subject to execution here, but that has never been considered by our courts as an equitable estate. We have used an antiquated phrase to describe an interest which has always been treated as a legal estate by our tribunals, and which has now been divested of all the former difficulties which may have made it anomalous. But no equitable estate — properly so called — was liable to be sold on the execution in controversy.

We have no doubt the transaction described in the record created nothing but a trust in favor of the execution debtor, which could only be seized through equitable means. The legal title was conveyed to Wing and McCauley, and they gave back a written agreement to re-deed on certain contingencies, in case they were held harmless against certain liabilities as sureties. But their agreement reserved the right, in case they were found to be liable, to turn out the property to the United States at any time they might see fit, or to hold the land until discharged by the United States. This subserved the purposes of a mortgage, but it did more. It contemplated that they might convey the property if they found it necessary or desirable to do so. If the agreement merely designed that they might turn it out on execution, there would be no sense in it, because if liable to execution, it would not be necessary for them to reserve any such right, while if not liable, the provision would be nugatory, because individuals cannot change the law of the land. This clause was evidently designed to enable them to make such arrangements amicably with the United States as to save unnecessary expense, in case they were found liable, and it can have no other meaning. They held the legal title for trust purposes, and were not mortgagees in any sense beyond that which for certain purposes treats all securities in equity as in the nature of mortgages. But no mortgagee, in the strict sense of the term, could transfer title to any part of the mortgaged premises, free and clear of the right to redeem. As between the parties, no doubt the rights might be settled in equity on principles analogous to those applied in mortgage cases, but the analogy does not make the transactions identical.

We do not deem it necessary, in view of our previous decisions, to enlarge upon any of the questions involved. The judgment was correct and must be affirmed.

The other Justices concurred.