Frank v. Brown , 255 Mich. 415 ( 1931 )

This is a bill to foreclose a real estate mortgage given to secure a note for $1,100, due April 1, 1913, running from defendant Mary E. Dickinson to Albert E. Sleeper, assigned by him to intervener, Josie Provost, in 1914, by her to R.J. Wilson in November, 1924, by him to John A. Lee immediately thereafter, and by Lee to plaintiff October 30, 1925. Defendants Brown are subsequent purchasers of the land.

Intervener filed a cross-bill for cancellation of the assignment from her to Wilson and to require plaintiff to deliver up the mortgage but did not make Wilson a party to the suit. She had decree. The propriety of the cross-bill on intervention and nonjoinder of parties is not questioned.

Wilson had a fox farm and sold a pair of foxes to Mrs. Provost and her husband for $1,500. They paid $200 in cash, gave him a note for $403, and Mrs. Provost assigned the mortgage, on which $1,000 was due, to cover the purchase price and some future care of the foxes. Wilson bought the foxes from Lee and received them in December. With many others they died in February from a contagious disease or lack of care.

The case was heard immediately following trial of suit on the $403 note. It may be, as suggested by counsel, that this procedure resulted in failure to return all the pertinent testimony upon which the chancellor based his findings, but we are confined to the record before us.

Intervener claims the foxes were not in accordance with the contract but were undersized and sickly when received by Wilson. The record does not sustain the claim. Moreover, Provost saw them shortly after they arrived, made no complaint of them, nor attempt to rescind or reject, and must be deemed to have accepted them.

The principal claim is fraud, that Wilson represented that the foxes would double in value in money in a year. This representation, if made, may have been an opinion, a promise, warranty, or contract, but in its nature could not be a statement of fact and form a basis of fraud as against the possibility of their dying within a year.

Moreover, although intervener and her husband say they discovered the alleged fraud in April, 1924, they made no complaint to Wilson, no demand for rescission or return of the instruments, nor did they take any legal action prior to this suit, which was commenced November 30, 1926, after plaintiff had purchased the mortgage. The testimony is undisputed that plaintiff purchased the mortgage for a valuable consideration and without notice of any claim of fraud or defense. Such a purchaser will be protected against cancellation to the extent of his bona fide investment. 9 C. J. p. 1222; Jones v. Titus, 208 Mich. 392; Reich v.Schmidt. 242 Mich. 130; kuczewski v. DeMagnussun, 242 Mich. 296 (57 A.L.R. 756).

The decree is reversed, and plaintiff will have decree of foreclosure, with costs.

BUTZEL, C.J., and WIEST, CLARK, McDONALD, POTTER, SHARPE, and NORTH, JJ., concurred.