the Valpeys "paid as well as purchased." We have already said that the executory promise to give a mortgage might not be any better than an unrecorded mortgage, under the statute, and would not stand as against intervening creditors. See Jones, Chat. Mortg. § 3. We need not discuss the validity of a mortgage given for and at the time of the payment of money, as all recognize that it is valid, and binds property against a vendor, though fraudulently procured. See Schloss v. Feltus, supra, where the subject is discussed; Benj. Sales (6th Ed.), 446; Tied. Sales, § 329, and cases cited; 8 Am. & Eng. Enc. Law, 756, 842. All of these authorities recognize the rule that the purchaser must part with something of value, and they agree that merely taking security for an antecedent debt does not, alone, furnish a valuable consideration. But here the consideration for the mortgage was a precedent debt, and also the payment of a sum of money which would not have been paid but for the promise to give the mortgage. Had the mortgage been given then and there, it could not be said that it was given for an antecedent debt, and the claim of the plaintiffs is predicated upon the interval of time that elapsed between payment and the delivery of the mortgage. opinion, it was essentially one transaction, and, instead of being given solely for an antecedent debt, the mortgage was given for a concurrent obligation, from which the mortgage was inseparable, and to that extent, at least, bound the property. The passage quoted from the charge would be too broad, inasmuch as it appears to omit reference to the importance of the agreement to give the mortgage, but for the fact that the undisputed testimony shows that the money was paid in reliance upon the agreement to give the mortgage. This was doubtless the reason for its omission. In our As the undisputed evidence shows that the Valpey mortgage was taken in good faith, and for value parted with in reliance upon it, it was a perfect defense, except as to the amount remitted; and, as the court might have 115 MICH.-42. said so to the jury, the other questions raised need not be considered. The judgment of the circuit court is affirmed. The other Justices concurred. 115 658 s 120 361 115 658 152 366 MARKILLIE v. MARKILLIE. 1. CONTRACTS-CONSIDERATION-ANTENUPTIAL PROMISE. An antenuptial promise by the husband to convey land to the wife does not constitute a consideration for a conveyance after the marriage, where the wife did not rely upon such promise in contracting the marriage. 2. SETTLEMENT-MATTERS NOT INVOLVED. Where a testator's heirs at law threatened to attack, on the ground of incompetency and undue influence, a codicil to his will bequeathing certain moneys to his wife, and a deed conveying to her certain lands, and thereafter came to a settlement with her with respect to the bequest, nothing being said about the land, they were not precluded by the settlement from pursuing proceedings in equity to set aside the deed. Appeal from Van Buren; Buck, J. Submitted January 5, 1898. Decided February 16, 1898. Bill by George W. Markillie and others against Wealthy Markillie and Charles Allen to set aside certain deeds. From a decree for complainants, defendants appeal. Affirmed. T. J. Cavanaugh and Alfred J. Mills, for complainants. A. Lynn Free and Heckert & Chandler, for defendants. GRANT, C. J. Complainants are the heirs at law of William Markillie, deceased. The defendant Wealthy Markillie is his widow. They were married May 26, 1894; he being 81 years of age and she 59. He was a widower, having been married twice. She was a widow. He died July 17, 1896. On February 25, 1895, he executed a deed of 80 acres of land to his wife. He was placed under guardianship, as an incompetent person, September 23, 1895. Defendant Allen is her grantee; she having deeded the land to him February 11, 1896. The complainants charge in their bill that the deed from Mr. Markillie to his wife was without consideration, was procured by undue influence, and that Mr. Markillie was incompetent to execute it; that the deed to Allen was made without consideration, and upon an agreement that at the death of Mr. Markillie he should redeed the land to her; and that the arrangement was made with full knowledge that Mr. Markillie was incompetent, and for the sole purpose of assisting her to defraud the estate and heirs of Mr. Markillie. The defendants deny the undue influence and incompetency, assert that the deed was made pursuant to a promise before marriage, but do not deny that the deed by defendant Markillie to defendant Allen was made under an agreement to reconvey on Mr. Markillie's death. Many witnesses were sworn-about an equal number on each side-in regard to the mental condition of Mr. Markillie for some years before his death, and as to his promise to deed the land to her. There is a sharp conflict of testimony on all the points raised, except that of an antenuptial contract. If there was any such promise, it rested entirely in parol. There is testimony that he told her he would give her the Barton place if she would marry him. him. Whatever Mr. Markillie said to her, she has disposed of the question of a valid antenuptial contract by her own testimony, for she says that she did not rely upon any such promise in getting married: "I married him for a companion, so that I might have some place to stay, and that he might have some place to stay. I had a home as well as I have now. One would assist in taking care of the other." The promise to convey was not, therefore, the consideration for the marriage contract. Two physicians testified that Mr. Markillie was seriously affected with senile dementia at the time of, and for a long time prior to, the making of the deed. There is no medical testimony to contradict this. Where the testimony is in such direct conflict, much depends upon the character of the witnesses as they appear upon the stand, and whose credibility the judge presiding is better able to determine. Able briefs are filed, and the case was ably argued here; but we think the court below was in better position than are we to decide the questions involved, which are purely those of fact. On the day that Mr. Markillie was adjudged incompetent, he made a codicil to his will, bequeathing to his wife $5,000. The heirs compromised the claim by giving her $4,000. It is now insisted that this settlement was made upon the basis that she retain the land. She herself testified that during the settlement no reference was made to the land. It cannot, therefore, well be maintained that the parties understood that no attempt should be made to set the deed aside. They settled the bequest under the will, and nothing more. The agreement of settlement did not purport to settle anything else than the matters therein described. We deem it just to Mr. Free, who drew the deed and took the acknowledgment, to say that there is nothing in the record which will justify an inference of improper conduct on his part. The decree must be affirmed, with costs. The other Justices concurred. MORTGAGES STEBBINS v. HEATH. FORECLOSURE-REDEMPTION-RESALE. A mortgagor's petition for a resale of the premises, which were bid in by the mortgagee upon foreclosure, will be denied, notwithstanding the latter promised to redeed to the mortgagor upon payment being made within a specified time after sale, or to give still further time for redemption on payment of a specified sum, where it appears that the mortgagor made no offer of payment within the period limited, nor requested further time, but talked and acted as though he had abandoned his purpose to redeem, in reliance upon which the mortgagee paid prior incumbrances and taxes upon the land, and went to a considerable expenditure of money, time, and trouble Appeal from Kent; Grove, J. Submitted January 5, Decided February 16, 1898. 1898. Bill by Andrew J. Stebbins against Wilmer H. Heath and others to foreclose a mortgage. From an order denying a petition for a resale, defendant Wilmer H. Heath appeals. Affirmed. Wolcott & Ward, for appellant. Frank W. Hine, for complainant. HOOKER, J. The complainant took a consent decree of foreclosure, and the proceedings up to the sale appear to have been regular. The sale was made in the presence of the defendants and their solicitors, and the premises were bid in by the complainant for the amount due, which was figured and agreed to by the defendants. The sale occurred on May 19, 1897, the report of sale was made, and order nisi (of confirmation) was entered, upon the same day. On the 2d day of June, 1897, the defendant Heath filed a petition praying that a resale be |