Home/Michigan Supreme Court/Toll v. Davenport

Toll v. Davenport

42 N.W. 63, 74 Mich. 386, 1889 Mich. LEXIS 663
CourtMichigan Supreme Court
DecidedApril 12, 1889
StatusPublished
Cited by6 cases

This text of 42 N.W. 63 (Toll v. Davenport) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Toll v. Davenport, 42 N.W. 63, 74 Mich. 386, 1889 Mich. LEXIS 663 (Mich. 1889).

Opinion

Long, J.

The bill in this cause was filed April 7, 1887, to foreclose a mortgage made February 9, 1870, by James Davenport to Alfred Toll, and assigned to complainant, and to correct the description of the premises mentioned in the mortgage. After the cause was at [387]*387issue, and James Davenport liad been examined as a witness, be died, and the complainant dismissed the bill as to him; he having parted with his interest in the land in controversy before his death, and the bill not having been revived against his heirs. On the hearing in the court below the court dismissed the bill, with costs to the defendants. Complainant appeals.

The premises are described in the mortgage sought to be foreclosed as follows:

“All that certain piece of land situate in the township of Eaisinville, Monroe county, Michigan, and being a part of old claims Nos. 335 and 459, and bounded and described as follows, to wit: On the north by town line; east by lauds of Nelson Ambrose; south by lands of Lawrence Mack and Marcella Eichards; on the west by lands of Cornelius Shirk, and fractional section three (3), in town six (6) south, range eight (8) east, — containing one hundred acres, more or less.”

The following appears after the description in the mortgage:

“And the said James Davenport by these presents selects and chooses the north forty acres of said abovedeécribed one hundred acres as his homestead under the statute in such case made and provided; to have and to hold the above bargained premises unto the said party of the second part, his heirs and assigns, forever.”

At the time of the execution of this mortgage James Davenport was a married man. The defendant Louisa Davenport is his wife. This mortgage was given for the sum of §819, payable in three years, with interest annually at 7 per cent. Several other mortgages have been given upon these lands, or some portion of them. These mortgages become important in the consideration of the case. All these* mortgagees hold their rights, however, under James Davenport, deceased; some of them being signed by his wife, Louisa. The first mortgage was given by James and Louisa Davenport to Charles G. [388]*388Johnson in December, 1863, covering this 100 acres of land. Johnson assigned this mortgage to defendant James Armitage. Armitage foreclosed it, and a sale was made thereunder, March 16, 1887. The south 60 acres of the mortgaged premises were sold and bid in by Charles Toll for the complainant in this case, who was made a party defendant in the foreclosure proceedings. This mortgage covered the homestead 40, and about 60 acres lying south of what is called the “Blue Bush Road;” the tract south of this road being the one sold.

The second mortgage was given by James and John Davenport to Charles H. Oolgrove, April 17, 1866, includ. ing this tract of land with other lands. The northern boundary of this tract in this mortgage was the town line between Raisinville and Exeter. This mortgage was assigned to one Alfred Toll, and in 1870 was discharged by Charles Toll, his agent, and the mortgage in controversy given by James Davenport to Alfred Toll, and in this mortgage in controversy the northern boundary of the lands described is the town line.

In April, 1871, James and Louisa Davenport mortgaged to James Armitage. This mortgage covers the homestead, and also the 60 acres south of the Blue Bush road, and the premises are described as bounded on the north by the town line.

On April 17, 1878, James Davenport mortgaged to James Armitage the same description, and also the three acres of land in the town of Exeter, being the same parcel of land that is now sought to be made subject to the lien of the mortgage now in controversy; the description of the northern boundary of the premises in this mort' gage being, “north by the United'States*surveyed lands.” The following is a plat of the premises, showing the United States surveyed lands, and the township line between Raisinville and Exeter:

[389]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Moyer v. Edlund (In Re Vandenbosch)
405 B.R. 253 (W.D. Michigan, 2009)
Olson v. Aegis Mortgage Corp. (In Re Bloxsom)
389 B.R. 52 (W.D. Michigan, 2008)
Robertson v. Smith
158 N.W. 207 (Michigan Supreme Court, 1916)
Eagle v. Smylie
85 N.W. 1111 (Michigan Supreme Court, 1901)
Stevens v. Wadleigh
57 P. 622 (Arizona Supreme Court, 1899)
Metropolitan Lumber Co. v. Lake Superior Ship Canal, Railway & Iron Co.
60 N.W. 278 (Michigan Supreme Court, 1894)

Cite This Page — Counsel Stack

Bluebook (online)
42 N.W. 63, 74 Mich. 386, 1889 Mich. LEXIS 663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toll-v-davenport-mich-1889.