Wayne County MI Archives Court.....Weed, V. Lyon 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, 7:59 am Source: Cases In Chancery Written: 1837 CASES IN CHANCERY FIRST CIRCUIT. Nathaniel Weed and others v. James Lyon and others. Recording acts of 1827. The act of April 12, 1827, entitled "an act concerning mortgages," prescribes the manner in which mortgages may be registered, and, being an act expressly in relation to mortgages, and general in its terms, is not controlled in relation to the record of mortgages by the act of the same date, entitled "an act concerning deeds and conveyances;" and a compliance with the first-mentioned act in the record of a mortgage is sufficient. The bill of complaint in this case was filed November 16, 1840, and sets forth that on the 6th day of June, 1837, John Hale was indebted to complainants, in the sum of $3,038.37, for goods, etc., and the said Hale, being seized of, or pretending to be seized of, the fee of lots 16, 17 and 18, on the Military Reservation, so called, on the south side of Congress street, in the city of Detroit, free from all incumbrance, executed, with his wife Felicite, a mortgage on the premises, which was recorded in the office of the register of deeds for the county of Wayne, on the 17th of June, 1837. That default having been made in the payment of the bond and mortgage, a foreclosure was commenced by advertisement on the 17th day of June, 1839, and the lots were struck off to the complainants, and they became the purchasers, on the 31st day of August, 1839, and received a certificate from the sheriff, that, unless the land was redeemed according to law, the purchasers would be entitled to a deed in two years from the date of said purchase; that the certificate of sale from the sheriff was duly recorded in the office of the register of deeds of the county of Wayne; that the property had not been redeemed, and there was no probability of its being redeemed, as Hale, the mortgagor, was dead, and his estate insolvent, and complainants aver that they hold no other security for the payment of the demand or debt, or any part thereof. The bill then states that complainants were greatly surprised recently to learn there was a prior encumbrance in favor of the defendant Lyon, which was made about the 13th of November, 1828; and, upon examining the records of Wayne county, they find such to be the fact, and that certain proceedings were instituted in behalf of said Lyon, to foreclose the mortgage, and that the said premises were bid off on the 21st of November, 1838, and that the sheriff gave a certificate stating that James Lyon, the purchaser, would be entitled to a deed in two years, unless previously redeemed according to law. An assignment was made in January, 1840, to Thomas Beals, by Lyon, and the complainants charge that Beals or Lyon contemplate applying to the sheriff of the county of Wayne, for a deed, on the pretence that the premises have not been redeemed, thereby utterly disregarding the rights and interests of the complainants; and they charge, if such deed is procured, it would prejudice their claim on the premises. The complainants then set forth that it was provided, in an act of the legislature, that there should be a city register's office in the city of Detroit, which law was in force at the time of the execution of said mortgage to Lyon, requiring it to be recorded in the city register's office, and declaring such conveyance to be fraudulent and void, unless it should be recorded in the city register's office before the "recording" of the deed or conveyance of a subsequent purchaser or mortgagee. They then state that at the time complainants took their mortgage they examined the city records, and that Lyon's mortgage never was recorded in the office of the city register, and that they had no knowledge of the same until June, 1840, and they claim that the Lyon mortgage should be considered as fraudulent and void. Bill charges that the statutory foreclosure is void as against the complainants, for the reason that the mortgage of Lyon was not recorded in the city registry. And it prays that the mortgage made by Hale and wife to Lyon be adjudged null and void as against the complainants, or considered as subject to complainants' mortgage; and that the statutory foreclosure be set aside and declared void, and for other relief. The defendants demurred. H. N. Walker, in support of the demurrer. A. D. Fraser and Geo. C. Bates, contra. The Chancellor.—The act of April 12, 1827, entitled "an act concerning mortgages," prescribes the manner in which mortgages may be registered. This being an act expressly in relation to mortgages, and general in its terms, is not controlled in relation to the record of mortgages by the act of the same date, entitled "an act concerning deeds and conveyances." Therefore, the record of the mortgage of Lyon in the county registry, according to the requirements of the act first mentioned, was legal and valid, and a constructive notice under the statute to any subsequent mortgagee or grantee of the same premises. As this conclusion upon the construction of these statutes is conclusive upon the equity of the case made by the bill, the demurrer must be allowed and the bill dismissed. Bill dismissed. 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/weed61gwl.txt This file has been created by a form at http://www.genrecords.org/mifiles/ File size: 5.9 Kb