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Welbon v. Welbon

Welbon v. Welbon, 67 N.W. 338 (Mich. 1896)
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Court
Michigan Supreme Court · State Highest Courts
Decided
May 19, 1896
Judges
Grant, Hooker, Long, Montgomery, Moore
Citations
67 N.W. 338109 Mich. 3561896 Mich. LEXIS 859
Disposition
Reversed.
Cited by 3
Headnotes
1. Mortgage—Foreclosure—Decree for Deficiency. A decree for a deficiency on the foreclosure of a mort.gage, against one not personally liable for the payment of the mortgage debt, is erroneous. 2. Same—Interest—Tenant for Life. A grantor of property incumbered by a mortgage, who reserves a life estate therein in himself, is bound, as between himself and the grantee, to pay the interest on the mortgage during the existence of the life estate. 3. Same—Deed—Covenants of Warranty. A grantor in a deed covenanted that the premises conveyed were free from all incumbrances whatever, except a specified mortgage, and that be would warrant and defend the same against all lawful claims whatsoever. Held, that the previous mention of the existence of the mortgage did not take it out of the general covenant of warranty.
Summary
Appeal from Washtenaw; Kinne, J. Bill by Isaac Welbon against Mary Jane Welbon and others to foreclose a mortgage. From a decree for complainant, defendants appeal. The object of this suit is- to foreclose a mortgage executed by the complainant to one Joseph M. Thompson. The material facts are these: Complainant was the husband of defendant Mary Jane, and the father of the other defendants. Mr. and Mrs. Welbon became involved in trouble, resulting in her filing a bill of divorce against him. This trouble was then finally arranged, and resulted in complainant’s executing a deed of this land to his children, who were then minors. The land was a farm, and the family moved and lived upon it for a while. Previous to the execution of this deed, complainant had executed this mortgage for the sum of 1200. His wife did not join in the mortgage. It is claimed that the family did not know of the mortgage until some years after-wards. Mr. and Mrs. Welbon again became estranged. She left him, and, with the children, went to Detroit. She again filed a bill of divorce against him, and obtained a decree. In 1885 complainant paid Mr. Thompson the amount of the mortgage debt, and the mortgage was returned to him. Shortly after, Mr. Welbon presented a paper for Mr. Thompson’s signature, saying that he wanted something to show that the mortgage was paid. Mr. Thompson executed the paper, which was an assignment, instead of a discharge. Decree for the full amount and interest was entered.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Grant

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Grant, J.

{after stating the facts). The decree, we think, cannot be sustained for several reasons:

1. The defendants were not personally liable for the debt secured by the mortgage. It was therefore erroneous to enter a decree against them for any deficiency. Complainant alone was personally liable for the debt, and had paid it.

2. In the deed to his children complainant reserved a life estate in himself. It was his legal obligation to-pay the interest upon the mortgage during the existence of the life estate. The decree was erroneous in including interest.

3. The deed contains the following covenant:

“The said party of the first part, for himself, his heirs, executors, and administrators, does covenant, grant, bargain, and agree to and with the said parties of the second part, their heirs and assigns, that at the time of the en-sealing and delivery of these presents he is well seized of the above granted premises in fee simple; that they are free from all incumbrances whatever, except a certain *358 mortgage given by him to Joseph M. Thompson, dated October 1, 1883; and that he will, and that his heirs, executors, and administrators shall, warrant and defend the same against all lawful claims whatsoever.”

The covenant of warranty contains no exception, and the previous mention of the existence of this incumbrance does not take it out of his covenant of warranty to defend the title against all lawful claims whatsoever. In other words, there is no limitation placed upon this covenant. Sandwich Manfg. Co. v. Zellmer, 48 Minn. 408 .

The decree must be reversed, with costs of both courts, and the bill dismissed.

Montgomery, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 3 cases

View all citing references →
1910: 11920: 11922: 119102026peak 1910 · 1

Relies on it most ⓘ

  1. Kreuscher v. Roth188 N.W. 996 (Minn. 1922)
  2. Miller-Piehl Co. v. Mullen174 N.W. 542 (Wis. 1920)
  3. Smith v. Gaub123 N.W. 827 (N.D. 1910)

Most recent

  1. Kreuscher v. Roth188 N.W. 996 (Minn. 1922)
  2. Miller-Piehl Co. v. Mullen174 N.W. 542 (Wis. 1920)
  3. Smith v. Gaub123 N.W. 827 (N.D. 1910)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

DepthCaseCited by
Sandwich Mfg. Co. v. Zellmer, 51 N.W. 379 (Minn. 1892) 27

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