Ferry v. Miller

Brooke, J. (after stating the facts). The only question presented by this record is whether Mrs. Miller or her grantee owns the four lots she conveyed to the Cronks, subject to' their mortgage lien, or whether they belong, as held by the learned circuit judge, to her husband. It is not questioned upon this record that Mrs. Miller agreed with her husband that, if he would raise the amount of her fine and secure her release from jail, she would deed absolutely to him, or to any one for him, the four lots she owned. He testifies (and is not contradicted) that he took her deed directly to the Cronks, instead of to himself, in order to save the expense of making and recording an additional deed. She did not, however, in fact, convey to him, and he, in fact, paid her nothing for her conveyance to the Cronks. It seems to us clear that the legal effect of the transaction was to create a mortgage lien upon all of the property, the legal title to which remained in the individuals who each contributed four lots as security for the loan. At the time of the transaction it is no doubt true that Ida Mae Miller believed she was absolutely divesting herself of title to her four lots. This, however, was not the legal effect of her act. Her agreement to convey to her husband was [432] void under the statute (3 Comp. Laws, § 9509), and cannot be enforced. Messmore v. Cunningham, 78 Mich. 623 (44 N. W. 145); Waldron v. Merrill, 154 Mich. 203 (117 N. W. 631); Detroit, etc., B. Co. v. Hartz, 147 Mich. 354 (110 N. W. 1089); Hester v. Sullivan, 147 Mich. 493 (111 N. W. 85, 1033, 9 L. R. A. [N. S.] 1106). The decree of the court below is affirmed as to defendants Cronk, with costs of both courts. The transaction was a single one and the mortgage a single one. Therefore it is impossible to permit complainant to redeem upon payment of a proportionate amount of the mortgage. Upon payment of the whole amount, however, she may be subrogated to the rights of the mortgagee and collect a proportionate amount from the six lots not owned by her. Complainant will recover costs of both courts against defendant Silas A. Miller. Bird, McAlvay, Blair, and Stone, JJ., concurred.