
    William M. Richardson v. Myron Tolman et al.
    
      Foreclosure for portion of consideration withheld to perfect title.
    
    The grantee of land was allowed to withhold part of the consideration for a specified time in order to take up an outstanding title, and to secure the money withheld, he gave a mortgage. Held that it was no defense to its foreclosure that to perfect his title he had paid the amount withheld to a person who claimed to have obtained a quitclaim of the outstanding title, when it was neither averred in the answer nor shown by the proofs that the latter claim was valid or truthful.
    Appeal from Clinton.
    Submitted June 23.
    Decided October 13.
    Foreclosure. Defendant appeals.
    Affirmed.
    
      Spaulding & Cranson for complainant.
    
      Dart & Clark for defendants.
   Graves, J.

On the 16th of March, 1870, the complainant held the east half of the south-east quarter of section 28 in township15 north of range 1 west in Clinton county, under a title based on sales for taxes for 1S52 and several years preceding, and on that day he executed a grant of the premises to the defendant Myron Tolman for the consideration of $3000, of which some $560 consisted of a mortgage already on the property in favor of one Peacock and which Tolman assumed. The character of the title was mutually understood and the parties took into consideration what chance there was for any bona fide claim from the real holder of the original title; and assuming that it might become necessary to get it in, they agreed upon a sum within which as between themselves, the price should be confined. They decided that $500 of the consideration money should be kept back by Tolman for the space of five years to enable him to take care of that title in case of its coming forward, and to buy it up if necessary. They agreed that five years would be sufficient time and five hundred dollars more than enough to take care of the title. They agreed also that for the purpose of carrying out their intent in this respect the best course was for Tolman and wife to give a mortgage back on five years’ time for $500 with interest and containing a condition conforming to their understanding on the subject of the separate title. They pursued this plan and the mortgage was executed and delivered, though not recorded until the 28th of September, 1871. The special condition was Named in these terms: And in case there should be failure of the title to the land above described, or any part thereof, by reason of which said party •of the first part should be obliged to pay therefor, the amount he is obliged to pay shall be deducted from this mortgage.” Tolman was let into possession and has since held it without disturbance. At the expiration of the five years Kichardson filed this bill to foreclose the mortgage.

The defendant Fuller had taken a deed from Tolman subsequent to the mortgage, but had given it priority of record. In joining him as defendant the bill alleged that he bought with actual notice of the mortgage. As he admits having paid nothing his position in the case raises no question.

At the time of the bargain between Eichardson and Tolman, and when they exchanged the deed and mortgage, it appeared by the records, and was known to. both, that the purchaser from the United States was one Samuel Hall, and it was the title which originated in that grant that the parties had in view and the title to -which they referred in the condition set- foyth in the mortgage. There seems to have been no other title not in harmony with that based on the sales for taxes. The defense set up in the answer is in substance that soon after the mortgage one Washington G-. Wiley represented to defendant Tolman that he had become the owner of the premises by purchase from Hall, the grantee of the United States, and he, Wiley, demanded possession; that he, Tolman, notified complainant and insisted on being protected and requested complainant to effect a settlement with Wiley if possible; that complainant refused to do anything, and thereupon he, Tolman, purchased of Wiley and paid him $500, and subsequently tendered complainant the accrued interest, together with sufficient to defray the expense, and demanded that he discharge the mortgage.

The first observation suggested is that this statement makes out no defense whatever. If admitted, it affords no answer to the bill. No ease within the condition can be deduced from it. There is no averment that in fact Wiley obtained or held any title or any color of title, or that his representation had a particle of truth in it. The most that is pretended is that he set up a claim of having become owner under purchase from Hall, and that defendant Tolman was content to give him $500 for what he claimed.

JBut this is not all. The state of facts proved in regard to Wiley’s ownership not only varies from the allegations in the answer, but distinctly negatives the existence of any defense based on the condition. No deeds were introduced, and the evidence respecting the title comes from the mouths of witnesses. The answer relied.on Wiley to substantiate his claim of having acquired the title Hall purchased from the United States, and to speak with considerable reserve, his deposition is considered uncandid and is not satisfactory. But the depositions of Hall and of Mrs. Fitzsimmons and her daughter are decisive. Wiley went to see Hall at Elmira, in New York, in May, 1870, for the purpose of getting a quit-claim deed from him, and Hall swears that he had conveyed the land to Fitzsimmons, now deceased, in 1810, and that he informed Wiley of the fact, añd that he had no interest whatever to convey ; that he finally, on Wiley’s request, gave him a quit-claim deed, and observed to him at the same time that he would quit-claim the whole State of Michigan to him for $5 ; that Wiley then remarked that he had been at some trouble and handed him not to exceed $25, and as he thinks, the sum of $5. The case strongly resembles in this part of it one of the leading features of Hanold v. Bacon 36 Mich. 1-7. Hall had nothing to sell, and so notified Wiley, and Wiley bought nothing of him. The transaction was a farce. As a transfer there was nothing real in it. The title which arose by the sale from the United States to Hall was not obtained, because that title was vested elsewhere and not in Hall, as Wiley well knew, and what the condition in the mortgage contemplated was the getting in of that title and not the concoction of false and deceptive papers to be held out as embracing it.

Nothing has been gained to the title complainant gave and on which the mortgage was based. The original title is as much outstanding as ever, and the possibility of its interfering with the tax title is not cut off now unless by something else than Hall’s deed to Wiley. If Tolman suffered himself to be duped by Wiley he cannot force the consequences upon complainant. He must bear them himself.

The decree granting foreclosure should be affirmed with costs.

The other Justices concurred.  