Spring v. Raymond

Grant, J. (after stating the facts). In the view we have taken of this case, it is unnecessary to determine the question whether Mr. Shaw had homestead interests in this land at the time of the transfer to complainant, or whether the conveyance was made by both him and complainant with intent to defraud his creditors, or whether the sale is void because no attempt was first made to .satisfy the execution out of Mr. Shaw’s personal estate. Defendant’s main contention is that this levy took precedence over complainant’s unrecorded deed. It is insisted in his behalf that he had no actual or constructive notice, .at the time of the levy, of the existence of the deed; citing Corey v. Smalley, 106 Mich. 257 (64 N. W. 13, 58 Am. St. Rep. 474), and authorities there cited. It is insisted on behalf of complainant that the defendant had such notice, and that it was his duty to proceed by bill in aid [86] of execution before sale, under Daniel v. Palmer, 124 Mich. 335 (82 N. W. 1067), and authorities there cited. The reasons given in Daniel v. Palmer, and other decisions of this court, apply with remarkable force to this case. The record in the office of the register of deeds at the time of the sale showed a transfer by proper deed to complainant, executed two months before defendant’s levy, and recorded three days after the levy. There was no reason why complainant should keep it from record. On the contrary, due regard for the protection of her own interests would have prompted her to record the deed at once. Defendant is without equity. He purchased the note which is the basis of the judgment for only $1, knowing that Shaw received no consideration therefor; took no proceedings against ■ Merrifield, or to levy upon Shaw’s personal property, but insisted upon the levy and' sale of real estate worth eight times the amount of his judgment. It is evident that no one, however much he might desire to purchase this property, would bid upon a sale of land, the title to which stood in that condition. The defendant was willing to take his chances, evidently relying upon the priority of his levy over the unrecorded deed. No one but himself would bid, and, in so conducting the sale, he obtained title to this land, worth $1,000 over and above-the incumbrance thereon, for $128. Courts of equity will avoid such sales whenever the rules of law and equity will permit. We think there is evidence in the case sufficient to-sustain the finding that defendant, at the time of his levy, knew that Mr. Shaw had parted with his title. The conversation which he admits having had with Mr. Shaw clearly informed him that Mr. Shaw had no leviable interest in the land.. It is true, the tenant, who had been tenant under him, was at the time of the levy in possession; but an inquiry of the tenant would undoubtedly have revealed the fact that Shaw had transferred the property to complainant, for there is reliable evidence to-show that the tenant knew of the transfer, and, as he expressed it, he had a “ new boss.” [87] Defendant’s counsel seek to bring the case within Atwood v. Bearss, 47 Mich. 72 (10 N. W. 112), and similar cases. In that case a husband and wife were in possession of and lived upon the land. She had conveyed it by deed to her husband. His occupancy was found to be under her ownership, and in right of the marital relation, and there was nothing to suggest that she had conveyed to him. In that case the grantor and the grantee were both in the possession of the property as husband and wife. There was nothing to indicate that the husband’s possession was any different than it had been. In this case the grantor was not living upon the property. It was rented from year to year. Under these circumstances, the presumption as to title is not the same as where the grantor remains in possession of the property. Aside from this question, however, we think he had knowledge and notice sufficient to, put him upon inquiry, and that he should have proceeded by bill in aid of execution. We think that complainant was not a creditor of Mr. Shaw, as found by the court below, so as to entitle her. to redeem under the statute; but she has not appealed, and, it is said, tendered the money required. The decree, therefore, must be affirmed, with costs. The other Justices concurred.