Townsend v. Kreigh

94 N.W. 732, 133 Mich. 243, 1903 Mich. LEXIS 487

• Court: Michigan Supreme Court
• Decided: May 12, 1903
• Docket: docket No. 49; docket No. 68
• Status: Published

Opinions

Carpenter, J.

This is an ejectment suit to recover •possession of the northeast quarter of the southwest quarter of section 27, township 18 north, of range 16 west. Plaintiff obtained her title February 15, 1899, by purchasing at a statutory foreclosure of a purchase-money mortgage executed November 25, 1882, given by defendant Jacob Mahler to Larmon- B. Townsend, plaintiff’s husband. On said 25th of November, 1882, said Larmon B. Townsend and Gertrude, his wife (plaintiff in this suit), conveyed the lands in suit by warranty deed'to said •defendant, Jacob Mahler. Jacob Mahler at once took possession of the land, and conveyed the east half of the .same to William Kreigh, the son of defendant Joseph Kreigh, who soon thereafter conveyed to his father oneLalf of his interest. The son, William, after living on •the property for about seven years, moved away, and .subsequently died. Defendant Mahler, with his wife, continued in occupancy of the west half, and defendant Kreigh and his wife of the east half, until the commencement of this suit.

To defeat this suit defendants undertook to prove that •said Larmon B. Townsend did not own the land in question at the time he deeded the same to defendant Mahler; that, soon after defendants took possession, some Indians •came to them, and claimed"to own the land; that in 1888 they tried to borrow money upon this land, to pay off the mortgage under which plaintiff now claims title, but could not borrow the money, because the title was defective; that on the 17th of January, 1899, defendant Joseph Kreigh purchased said outstanding title, and thereafter ■conveyed the west half of the property in controversy to ■defendant Jacob Mahler. It is to be noted that no claim is made, nor does the evidence prove, that the proceedings to foreclose the mortgage in question were not commenced within the time specified in 3 Comp. Laws, § 9725. The ■trial court made a ruling which, in effect, excluded defendants’ testimony, and then directed a verdict in plaintiff’s favor.

The ruling excluding this testimony was clearly correct. Defendants, while in possession of this land under the-deed from Larmon B. Townsend, were estopped from disputing his title for the purpose of escaping the payment of the agreed purchase price. Robertson v. Pickrell, 109 U. S., at page 615 (3 Sup. Ct. 407); Peters v. Bowman, 98 U. S. 56; McConihe v. Fales, 107 N. Y. 404 (14 N. E. 285). It follows that they are estopped from disputing their grantor’s title for the purpose of defeating a purchase-money mortgage. This application of the principle of estoppel is most equitable. The title purchased by defendants was barred by the statute of limitations before their purchase was made. Defendants’ possession, under the deed from plaintiff’s husband, destroyed the title which they now assert. They acquired, therefore, no additional rights to possession by their purchase of said title. Their entire right to possession, then, comes from their deed from plaintiff’s husband, unless, while holding under said deed, they have acquired a right adversely thereto. It would be useless to refute the proposition that a grantee, who has given back a purchase-money mortgage, holds adversely to his grantor and to said mortgage, merely because the title of his grantor is defective.

Inasmuch as the testimony in the case proved that the holding of defendants was hot joint, but several, the court erred in directing a verdict, under the declaration, which charged a joint holding. See Murphy v. Campau, 33 Mich. 71. While this precise objection was not made in the court below, it can, nevertheless, under the authority of Haldeman v. Berry, 74 Mich., at page 436 (42 N. W. 57), be raised by assignment of error to the charge.

For the error pointed out, the judgment must be-reversed.

The other Justices concurred.