Reynolds v. Campbell

8 N.W. 581, 45 Mich. 529, 1881 Mich. LEXIS 772

• Court: Michigan Supreme Court
• Decided: April 13, 1881
• Status: Published

Opinions

Campbell, J.

In January, 1873, Reynolds conveyed to defendant ninety acres of land in Washtenaw county at an agreed price of sixty dollars per acre, amounting in all to $5400.

When this land was sold it had on it about thirty acres of wheat, of which Reynolds claims it was agreed he should retain thirteen and one-half acres, of which twelve were in one parcel and the remainder in another field. These were also three mortgages against complainant at that date — one for $117 due to L. D. Watkins, one to Charles Wells on which there was to become due $2245, with interest from 1868, but which was not payable for some time thereafter, and a smaller mortgage to Wells which covered only a small part of these premises with adjacent lands, which had been originally for $375, but on which the principal had been due several years, and with interest amounted to something more than $600.

Complainant claims that defendant purchased subject to all three of these mortgages, and was to pay and did pay the remainder of the $5400 partly in cash, and partly in a mortgage on lands in Jackson county of $900.

Defendant admits that he agreed to pay the two mortgages which covered his farm, but denies that he agreed to except the wheat, or to pay the smaller Wells mortgage, and insists that he paid the full balance above the $900, in cash.

The deed given by complainant was an ordinary warranty deed with no exceptions. In 1876 this bill was filed to correct this deed by excepting the wheat and making the grant subject to all the mortgages.

The $900 had been paid, as well as the Watkins mortgage add most of the large Wells mortgage, which it was understood between Wells and defendant the latter was to pay in full.

Defendant gathered the wheat. He also from the beginning refused to recognize the smaller Wells mortgage as binding on him.

The court below decreed for complainant for the wheat and all the mortgages. Defendant appeals.

In this case the testimony of the parties and of their wives is positively contradictory, upon all of the points involved. The outside testimony does not appear at all conclusive. There are many circumstances which in our view rather tend to confirm the statements of the defendant. But it is enough to say that without a very convincing preponderance of evidence in favor of complainant no relief can be granted. We do not think there is such a preponderance or any preponderance and therefore no decree should have been granted.

The answer is sufficient to determine, in any future controversy, the liability of defendant to pay what is left of the large Wells mortgage. It is not clear that any further relief could have been granted in any case, and nothing is shown to indicate that defendant would ever have objected to sign any proper instrument to that effect.

The decree must be reversed and the bill dismissed with costs.

Marston, C. J. concurred.