Rickle v. Dow

39 Mich. 91, 1878 Mich. LEXIS 215

Opinion

Marston, J.

There is abundant evidence in this •case,' in the letters and course of dealings of the parties, to establish the fact that Burrall was the recognized agent of B. F. Dow & Co. This being so, Dow & Co. are bound by his acts and cannot now repudiate them. ‘The note in question was given to Burrall as their agent. It was payable upon its face to the order of B. F. Dow & Co., and was transmitted to and received by them. Under such circumstances it is somewhat difficult to discover upon what theory they can be considered •as bona fide purchasers thereof. There are still other reasons appearing which would prevent their claiming to hold this paper as bona fide purchasers thereof, but we need not refer to them. The $300 note, to which this note may be considered given as collateral, having-been fully paid by Brakefield, Dow & Co. could not •thereafter insist upon payment of this note or any part thereof. They had already been paid the full amount ■of their claim, and they could not insist upon payment ■of it a second time from this complainant.

It was insisted, however, that Dow & Co. having •.recovered a judgment upon this note against complainant, they have a right to enforce such judgment,, and that this is all they have been seeking to do.. Complainant claims that he did not appear and defend in that case by reason of being misled by Burrall, the agent of the plaintiffs in that suit. This might be considered a sufficient excuse, but there is still another ground upon which complainant is entitled to come into» this court and seek relief.

The note in question was secured by mortgage upon complainant’s real estate. While the judgment might-bind complainant personally, yet it would not affect the-security or prevent complainant from having the mortgage set aside, upon showing that the obligation it had been given to secure had in fact been paid. The-fact that a judgment had wrongfully been obtained upon the note, binding upon the defendant in that case,, would be no answer in the suit to have the mortgage set aside and his real estate released from the mortgage cloud resting thereon. The court having obtained jurisdiction for this purpose, may, we think, well proceed and examine into the whole case and give complete relief in the premises.

The decree of the court below dismissing the bill must be reversed and a decree rendered in accordance with the prayer of complainant’s bill, with costs of both courts.

The other Justices concurred,