Wayne County MI Archives Court.....Livingston, V. Jones 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, 7:03 am Source: Cases In Chancery Written: 1837 CASES IN CHANCERY. Henry B. Livingston and another v. Enoch Jones and another. Acknowledgment no part of deed. The acknowledgment of an assignment of mortgage is no part of the instrument of assignment. (a.) Foreclosure bill: Allegation of assignment of mortgage. The averment in a foreclosure bill that the owner of a bond and mortgage, in consideration of one dollar, assigned the same to the complainants, and that on the same day the assignment was duly acknowledged before a commissioner of deeds according to the laws of the State of New York where the same was executed, is sufficient on demurrer. Guardian of minor: Power to sell mortgage. The guardian of a minor has the right to collect and receive money due to his ward on bond and mortgage, or to sell and assign the bond and mortgage in the exercise of his discretion as guardian. Foreclosure bill: Parties. Minors whose guardian has assigned a mortgage which he held for them, are not necessary parties to a bill by the assignee to foreclose the same. (b.) This was a bill for the foreclosure of a mortgage, dated September 9, 1834, given by Enoch Jones to Seaman, Van Wyck and Norton, to secure the payment of a bond in the penal sum of ten thousand dollars, conditioned for the payment of five thousand dollars and interest, on or before September 9, 1839. The bill averred that on February 10, 1835, Seaman, Van Wyck and Norton assigned the bond and mortgage by deed, and for a consideration therein mentioned, to Billop B. Seaman, guardian, etc., of Henry Brockholst Livingston, Jasper Hall Livingston and Catharine Louisa Powell, minors; that the execution of this deed of assignment, which was made in the State of New York, was duly acknowledged in due form of law before D. Hobart, then being a commissioner of deeds in and for the city and county of New York, agreeably to the law of that State; that on May 12, 1835, the deed of assignment was duly registered in the office of the register of deeds, in and for the city of Detroit; that on June 18, 1836, the said Seaman, guardian as aforesaid, in consideration of one dollar to him paid by Carroll Livingston, as attorney for Henry Brockholst Livingston, assigned to said Carroll Livingston the bond and mortgage, and on the same day the execution of the deed of assignment, which was executed in the State of New York, was duly acknowledged in due form of law before John McVickar, junior, then being a commissioner of deeds in and for the city and county of New York, in said State of New York, agreeably to the laws of said State; that said last mentioned assignment was made to Carroll Livingston as attorney, for the sole and exclusive use and benefit of Henry Brockholst Livingston. The bill then averred that a certain amount of interest was due and unpaid on the bond and mortgage, and prayed for decree of foreclosure and sale. Henry Godard, who was made defendant as subsequent purchaser, demurred to the bill and assigned the following causes: 1. That it does not appear that D. Hobart, before whom the first assignment was acknowledged, was authorized by the laws of New York to take acknowledgments of conveyances of real estate. 2. That it does not appear that John McVickar, junior, before whom the second assignment is alleged to have been acknowleged, had authority by the laws of New York to take such acknowledgment. 3. That it does not appear by what authority Billop B. Seaman, who is alleged to have been guardian of the minors, and to have held the bond and mortgage as such guardian, assigned, sold and transferred the same. 4. That Joseph Hall Livingston and Catharine Louisa Powell, having an interest in the subject matter, are not made parties. D. Goodwin, in support of the demurrer, to the point that the guardian's authority was special, and that he could not assign the bond and mortgage unless authorized by statute or by a court of competent jurisdiction, cited Reeve's Dom. Rel., 325-6; Morrell v. Dickey, 1 Johns. Ch., 153. A. D. Frazer, contra, cited as to the authority of the guardian, Field v. Schieffelin, 7 Johns. Ch., 150. And to the point that it did not lie with the mortgagor to object that the power of sale was not regularly acknowledged and recorded, Jackson v. Colden, 4 Cow., 266. The Chancellor.—The acknowledgment is no part of the instrument of assignment. The allegation in the bill as to the assignments having been duly acknowledged, according to the laws of the State of New York, where the same were executed, are sufficient on demurrer. The third cause of demurrer assigned, seems to be the point most relied upon by the party demurring. The bond and mortgage having been duly assigned to Billop B. Seaman, guardian of Jasper Hall Livingston and Catharine Louisa Powell, there can be no doubt that he had the legal right to collect and receive the money due thereon, or sell and assign the same, in the exercise of his discretion as guardian. This principle is fully established in the case of Field v. Schieffelin, 7 Johns. Ch., 150; and the allegations in the bill of the several assignments are sufficient upon demurrer. This is not a claim set up by the infants, alleging fraud in the assignment, but it is a demurrer by Godard, who claims title to the premises as subsequent purchaser from the mortgagor; and, it having been decided that the guardian had a right to assign the bond and mortgage, and that the allegations in the bill of such assignment are sufficient, the demurrer must be overruled. Demurrer overruled. ------------------ (b.) This point is not alluded to specifically by the chancellor, but it is necessarily covered by the decision. (a.) A deed is valid as a conveyance as between the parties thereto without any acknowledgment. Dougherty v. Randall, 3 Mich., 581. 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/wayne/court/livingst37gwl.txt This file has been created by a form at http://www.genrecords.org/mifiles/ File size: 6.6 Kb