Wing v. Railey , 1866 Mich. LEXIS 6 ( 1866 )

Campbell J.

In February, 1838, one Consider Crapo bought certain lands of Hugh Railey, and to pay for them was to convey two parcels of land, and to give a mortgage on other lands for $200. By mistake he gave a mortgage covering three parcels, two of which were the same he had already bargained to convey to Railey. One of the parcels was deeded the same day, and the other subsequently. Railey assigned $150, then remaining due on this mortgage to Wing, in May 1839, the mistake not having then been discovered, and the deeds to Railey not having been recorded. Railey also guaranteed the payment of the notes and mortgage. Wing now seeks to foreclose it against Railey’s heirs, Railey and Crapo being both dead.

In May, 1844, Wing gave his bond to Railey agreeing for the sum of $250, payable in four annual payments, to re-assign the Crapo mortgage, and to convey to Railey a lot of land in Washtenaw county. Three of these payments were made upon maturity. Whether the fourth payment was made does not appear. The note for it is not produced. June 4th, 1858, Wing sold the Washtenaw lot, Railey joining in the deed, and received $500 for it. He then tried to get Railey to sign an instrument giving Wing a right to apply this money as he pleased, c®> any debts of Railey alone, or with others, and on the' Crapo mortgage as an indebtedness to Wing. The bond from Wing, provided that on failure to pay any part of the $250, Railey should still be liable to pay that deficiency, lose the land, and pay the whole Crapo mortgage; and this attempt lias the appearance of trying to enforce that forfeiture. Railey, however, would not sign the document. On the 6th of June a document is produced, claimed and perhaps proved to have been signed by Railey, whereby in consideration of fifty dollars he agrees to give up all his rights under Wing’s bond, and also agrees to pay Wing the Crapo mortgage. It appears that instead of receiving anything from Wing on that day, he paid Wing twenty-five dollars.

By the sale of the Washtenaw lands, the balance due from Railey on this bond was paid, and he was entitled to demand from Wing his mortgage, and a balance in cash of about four hundred dollars. There is no evidence showing by what process Wing managed to get back from him this peculiar document. It appears affirmatively that there was no new consideration.

In the absence of clear proof wo shall not characterize this performance .as a fraud, but we think a party who seeks to rely upon it must seek some other forum than a Court of Equity.

The bill was properly dismissed. The decree must be affirmed, with costs.

Cooley and Christiancy JJ. concurred.