Brady v. Sloman

Execution — Setting Aside Sale — Deeds—Recording Laws — Constructive Notice. On a bill to set aside a levy and sale upon execution, it appeared that complainant’s father executed a deed, which was in fact a mortgage, to secure the payment of a loan. Upon the payment of said loan, the grantee deeded the land to complainant who went into immediate possession although said deed was not then recorded. Subsequently the land was sold to defendant on a levy and sale on execution. Held, that the judgment creditors and the purchaser were put upon notice by the actual occupancy of complainant, and that they could acquire at such sale no greater rights than the judgment creditor had; since a grantee in possession of land has title against all the world, whether his deed is recorded or not. Corey v. Smalley, 106 Mich. 257, followed.

Appeal from Wayne; Murphy, J. Bill by Francis J. Brady, Jr., against Samuel A. Sloman to set aside a levy and sale upon execution. From a decree for complainant, defendant appeals. Complainant in this suit seeks to set aside a sheriff’s levy and sale upon execution; the defendant being the purchaser at the sale. In 1889 complainant’s father, Francis J. Brady, Sr., was the owner in fee of the land. His sole creditor was one Prosper J. Raymond, to whom he owed $525. Brady, Sr., and Raymond were intimate friends and had accommodated each other with loans. To secure this loan Brady, Sr., gave Raymond a warranty deed, which was in fact a mortgage. Raymond was to reconvey upon payment of the amount secured. Raymond recorded the deed in the book of deeds, and not in the book of mortgages, on the day it was executed, December 27, 1889. On July 22, 1896, complainant paid his father’s debt to Raymond. The money so paid was contributed by the complainant, his father and brother. At the request of the father, Raymond, on the date last mentioned, conveyed the land by proper deed to his son, the com-, plainant. Complainant gave the deed to his father, for safe-keeping, supposing that he would attend to recording it. It was not recorded until December 19, 1902. Raymond exercised no control over the property either after the deed by Brady, Sr., to him, or after the deed from Raymond to complainant. The property was leased by the Bradys and receipts given to the tenants in the complainant’s name after January 16, 1901, and many of the receipts before that date were so given. In 1895 the Bradys spent $1,350 in enlarging the dwelling house on the land, converting it into a double house. Raymond became indebted on promissory notes to S. A. Sloman & Co., a copartnership, and on June 2, 1896, they obtained a judgment against Raymond in justice’s court for the sum of $121.31. On August 12, 1902, a transcript of said judgment was filed in the circuit court, and execution was issued, and the homestead of Raymond and the land here involved levied upon. . The premises were duly sold to the defendant on May 4, 1906, for $234.43, the amount of the judgment, with interest and costs. Prior to the sale the sheriff was notified that complainant claimed to own the premises in fee. When the sale was made, Raymond’s execution creditors did not have actual notice of complainant’s claim of ownership. The case was heard upon pleadings and proofs taken in open court, and the decree entered setting aside the levy and sale.