Jonghaus v. McCormick

J., plaintiff and owner of an undivided half of a piece of land, mortgaged it to G., and subsequently conveyed it to W. and he conveyed to M. B., the as- ■ signee of the note and mortgage, foreclosed, malting J., the mortgagor, alone a party. Decree of foreclosure and order of sale on the twenty-second of October, 1857. March 7th, 1859, M. brings suit against B., J. and the Sheriff of the county, to set aside said decree, and to cancel said mortgage on the ground of fraud in the mortgage, and that it was a cloud on M.’s legal title. Judgment for defendants in that suit. Subsequently the property was sold under the order of sale above named, and one Brandt became the purchaser and in due time received the Sheriff's deed. Brandt, May 29th, 1858, quitclaims his interest in the land to defendant here for $4,000—$2,500 being paid in cash, and a written agreement entered into between Brandt and defendant for the payment of the balance, $1,500, with-interest, provided Brandt, within two and a half years, should execute to defendant “ such full and sufficient conveyances and assurances of title to the premises hereinbefore described as shall vest in her a complete and unclouded legal title thereto,” * * and particularly should “ transfer and convey to her, by proper legal assurances, the outstanding claim of title or titles ” of four persons named. In case of failure on the part of Brandt for said period to make said deeds, etc., defendant was to be forever discharged in law and equity from paying said $1,500, or any part thereof. Brandt had the title of these four persons conveyed to defendant within the time mentioned, excepting that of one party which was conveyed after the time. Plaintiff now sues for the $1,500: Held, that the plaintiff cannot recover; that the agreement requires that defendant shall pay when she receives a valid and perfect title, free from all clouds and incumbrances; that this general provision is not restricted by the clause designating particular persons from whom conveyances should be obtained; and that the conditions of the agreement have not been complied with, because the legal title to the land is still in M., who was not a party to the foreclosure suit.

Held, further, that the suit brought by M. against B., J. and the Sheriff to set aside the mortgage and decree for fraud, determined nothing but the validity of the mortgage.