Unknown County MI Archives Court.....Wadsworth, Vs Loranger 1837
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/mi/mifiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 6:40 am

Source: Cases In Chancery
Written: 1837

Cases in Chancery.

Noyes W. Wadsworth v. Joseph Loranger.

Mortgage by deed absolute in form: Parol evidence to show intent. A deed 
absolute in form may be proved by parol to have been intended by the parties 
to operate only as a mortgage for money loaned at its date; and such proof 
will entitle the grantor to redeem.

Redemption against subsequent purchaser. Where the grantee in such a deed 
sells and conveys to one who has full notice of all the facts, such second 
grantee will take no greater interest than his grantor had in the premises, 
and he will hold them subject to be redeemed on payment of the amount due on 
the mortgage. (a.)

Attorney: Privileged communications. A statement of fact made by an attorney 
to his client, and which apprises the client of equities in a third party, is 
not a privileged communication, and may be proved by the attorney.

Costs on redemption. Where one purchases lands with knowledge that his grantor 
holds it in security for a loan, and refuses to receive payment of the loan 
when tendered, and puts the party entitled to redeem to the expense of a suit 
for the purpose, he will be compelled to pay costs.

This was a bill to redeem from the defendant a tract of land conveyed by 
Antoine Laselle to Thomas Bell, as a security for $150 loaned, and interest, 
September 20, 1829, by a deed absolute on the face, but by agreement at the 
time merely a security for the $150 and interest, payable in one year.

The bill sets forth the agreement as above stated, and the deed of that date, 
September 20, 1829, under the agreement; that Bell, when the money became due, 
had left the country, and it was not known where he was or could be found; 
that Laselle was then ready and desired to pay the money and interest; that 
Laselle died about January 1, 1832, and Wolcott Lawrence was appointed his 
administrator; that about December 8, 1832, he was empowered to sell the real 
estate of Laselle to pay debts; the premises in question were sold to 
complainant for $2,129.90, paid by him, and January 7, 1833, a deed was duly 
executed to him; that the premises were sold subject to the mortgage, and 
complainant has been ever ready to pay the amount due; that Loranger, the 
defendant, with full knowledge of the nature of the conveyance to Bell, and 
the agreement with him, obtained privately and fraudulently from Bell a deed 
of the premises. The bill further alleges a continued and uninterrupted 
possession in Laselle, his representatives and the complainant.

The answer denies any knowledge of the transactions set forth in the bill, 
showing the deed to Bell to have been a mortgage, and also of the derivative 
title of complainant from the representatives of Laselle. It admits the 
possession of the premises to have been always in Laselle and his 
representatives.

D. Goodwin, for complainant.

A. D. Frazer, for defendant.

The Chancellor.—The facts are briefly these: About the 20th of September, 
1829, Antoine Laselle obtained from Thomas Bell a loan of $150 for one year, 
and for security gave a deed of the premises in question. That before the 
expiration of the time, Bell absconded, and his residence has not since been 
known. That Laselle has since died; that the property was sold and conveyed to 
complainant by the administrator of Laselle, subject to this incumbrance, on 
the 7th day of January, 1833. That defendant knew all these facts, but yet 
afterwards, on the 5th of March, 1836, procured a deed from Bell. Loranger, 
the defendant, denies all knowledge of the fact that the deed from Laselle to 
Bell was a security for a loan.

But from the continued possession of Laselle and his representatives, the 
proceedings in the attachment suit, which form a part of the exhibits in this 
cause, in which Laselle, in answer to the attachment, states the facts under 
oath, and in which suit Loranger was a party, from the evidence of Wolcott 
Lawrence, who states that he explained at that time the circumstances to the 
defendant, and from the positive evidence of Warner Wing, Esq., there can be 
no doubt that he was a purchaser with notice. It was objected to the testimony 
of Lawrence, that his evidence was a professional secret, and therefore ought 
not to be received. But it is not a communication from the client to the 
attorney, but information from the attorney to the client, informing him of 
the nature of Bell's title. It was information which, as an honest man, he was 
bound to give, and which he is now not only competent but bound to disclose. 
That a deed absolute in its terms may be proved by parol to have been intended 
by the parties to operate only as a mortgage, cannot admit of a doubt. (See 
Strong et. al. v. Stewart, 4 Johns Ch., 167; James v. Johnson, etc., 6 Johns. 
Ch., 417; Van Buren v. Olmstead et al., 5 Paige R., 9.)

The facts then being ascertained, and of these there can be but little doubt, 
it only remains to apply the law to the case, and in this there is little 
difficulty.

I must, therefore, declare that this deed, though absolute on its face, is 
only valid as a mortgage for the security of the loan from Bell to Laselle, 
and that Loranger, being a purchaser with notice, can take no greater interest 
than Bell had in the premises, and that the complainant is entitled to redeem 
by the payment of the amount due, which by the testimony of Lawrence and 
Durocher, is proved to have been one hundred and fifty dollars at the date of 
the deed.

As to costs, Loranger purchased with a knowledge of the facts; he was wrong in 
refusing the money when tendered, and by denying any knowledge of the nature 
of Bell's title has put the complainant to the expense of proving his bill. 
The complainant is therefore entitled to recover his costs.

--------------
(a.) The doctrine of this case was reviewed and affirmed by the supreme court 
in Emerson v. Atwater, 7 Mich., 12, where the cases on the subject in other 
States are referred to and discussed by counsel. The court, however, did not 
in that case discuss the question at length on principle, but contented 
themselves with referring to the injustice that would be done by overruling a 
case which had for considerable time been received as settling a rule of 
property, and with saying that if they thought it erroneous in principle—which 
they did not—they believed it would be both better and safer to leave it to 
the legislature to correct the error, than for the court to undertake it, as 
all intervening rights would in that case be saved, and injustice be done to 
no one. As bearing upon the same point, see Batty v. Snook, 5 Mich., 231, and 
Enos v. Sutherland, 11 Mich., 538. See also 3 Leading Cases in Equity, Hare 
and Wallace's Notes, 608, 625, 630.

Additional Comments:
CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN
BY ELON FARNSWORTH, Chancellor 

File at: http://files.usgwarchives.net/mi/unknown/court/wadswort27gwl.txt

This file has been created by a form at http://www.genrecords.org/mifiles/

File size: 7.5 Kb