Mowry v. Mowry

Carpenter, J. March 30,1885, complainant conveyed by warranty deed two tracts of land — one containing 160 acres, and one containing 79 acres — to his son, the first-named defendant. There was inserted in this deed immediately after the description of the land, the following clause: “ Subject to all mortgages or claims that may be against said described land at this date.” At that time the 160-acre tract was incumbered by a purchase-money mortgage securing the payment of $2,000. This mortgage also covered 80 acres of the home farm of complainant. Complainant filed this bill against his son and Hannah, his son’s wife, and the other defendants, who are the owners of said mortgages, alleging the foregoing facts, and that his said son, the defendant, in consideration of said conveyance, agreed to pay said mortgage, and prayed that said mortgage be foreclosed, and that said 160-acre tract of land so conveyed to his son be first sold to satisfy the decree. Defendants Willis H. and Mary A. Alden, who own the mortgage under consideration, do not appeal. We have, therefore, no occasion to determine whether or not the mortgagor has the right to compel a mortgagee to foreclose his mortgage. Defendants Charles A. and Hannah Mowry, who do appeal, insist that defendant Charles did not agree to pay said mortgage. This was a question of fact, upon which, the testimony was conflicting. The learned trial judge,, who heard that testimony in open court, decided that h& did. We think this decision correct. Strohauer v. Voltz, 42 Mich. 444 (4 N. W. 161), and Canfield v. Shear, 49 [279] Mich. 313 (13 N. W. 605), are authorities for the proposition — if such authorities are needed — that it was competent to show by parol testimony that this agreement was made. We cannot agree with defendants’ contention that complainant had an adequate remedy at law. It is true that, if he had waited until his property had been taken upon the foreclosure of the mortgage, he could have recovered compensation by a suit at law. See Strohauer v. Voltz, 42 Mich. 444 ( 4 N. W. 161). But inasmuch as he had a right, unless the assertion of that right prejudices the mortgagee (and in this case it is to be presumed that it does not), to have the property conveyed to defendant first sold to pay the mortgage, to the end that he may preserve his own property (see Cooper v. Bigly, 13 Mich. 463), the remedy at law was inadequate. The decree of the court below should be affirmed, with costs. The other Justices concurred.