23 Mich. 224 | Mich. | 1871
The first question in this case is, whether Frazer, the mortgagor, and the other defendants who are purchasers from Mm, are entitled to the deduction of six hundred dollars for the deficiency of twenty acres of land at thirty dollars per acre.
Complainant having acted as the agent of his wife (who
We see no reason to doubt that, under the circumstances of this case, Frazer, upon discovering the deficiency, might have sustained a bill for reforming the deed or for a deduction from the purchase price. And we think it equally clear he is entitled to the deduction in this suit for the foreclosure of the mortgage. He never owed the amount for which the mortgage was given; and his grantees are equally entitled to the benefit of the deduction. The decree of the circuit court in chancery, therefore, properly deducted the six hundred dollars, as of the date of the mortgage. The next question is, whether Frazer’s note of December 15, 1866, given to James F. Joy (who then held the bond and mortgage as trustee for Mrs. Burchard) for one thousand four hundred and ninety-seven and sixty-two one hundredths dollars, the amount of interest then accrued and in arrear, operated as payment so far as the mortgage lien was concerned; or, in other words, whether the reception of the note and the mode in which it was treated by Joy show the intention to detach this amount from the lien of the mortgage, and to look to the note instead of the land, for its payment.
It may be admitted ■ that the mere giving a note for
But the course of action taken by the creditor (Joy as trustee) shows, we think, very clearly, the intention to detach this amount from the Jlien of the mortgage and to treat the note as payment. In December, 1868, he took a new note of Frazer for the interest accrued upon this note and receipted that amount of interest on the larger note; and a judgment has since been recovered upon the smaller note, though the amount is still unpaid.
Again, on the 5 th of May, 1869, Frazer entered into a written agreement to pay ten per cent, interest on all the balance due on the bond and mortgage from December 15, 1867 (when the whole became due). The agreement states “ the amount to be ascertained to-morrow;” and the account of all the payments and calculation of interest in pursuance of the agreement, showing the amount due May 5, 1869, as furnished in writing to Frazer, credits this note as payment, thus: “Payment December loth, 1866, Frazer’s •note, $1,497.62,” and the balance is made out upon this basis, precisely as if the amount had been paid in cash. We can, therefore, see no reason to doubt that the note was intended to operate as payment, or to detach and' relieve
The only remaining question is uj>on the validity and effect of the special agreement made by Frazer, the mortgagor, with Joy, then the trustee of Mrs. Burchard, on the 5th of May, 1869, to pay ten per cent, interest from the 15th of December, 1867, when the whole sum (not paid) had become due upon the bond and mortgage. The written agreement, we think, sufficiently shows that there had already been forbearance on the part of the creditor from the 15th December, 18G7, up to the date of the agreement, May 5, 1869, on the faith of a verbal promise to pay ten par cent, interest, and that this forbearance had been at the request of the mortgagor, and that he was also anxious for further forbearance, without reference to any particular period. This prior forbearance was a sufficient consideration for the agreement to pay the additional interest up to the date of the agreement, May 5, 1869, and any forbearance which took place after that .date on the faith of this agreement, was a sufficient consideration for the promise to pay ten per cent, interest till paid. This agreement, unlike the note, in terms attached to the debt secured by the mortgage; and, as between the mortgagor himself and the mortgagee or holder of the paper, we see no reason to doubt the validity of the agreement, which, as between those parties, should have the same effect as if the original bond and mortgage had provided for ten per cent, interest after the 15th of December, 1867, till paid.
But at the time when this agreement was made, and, in fact, before the maturity of the mortgage debt, the mortgagor had sold out all the land covered by the mortgage, in separate parcels, to various persons, some of whom aré defendants in this case; and, as to these purchasers, it was no more competent for the mortgagor to increase the
The decree, therefore, as to the defendant Frazer, should be so far modified as to allow the recovery against him of any balance of the mortgage debt calculating the amount at ten per cent, interest, according to the terms, and for the period, mentioned in his agreement. In all other respects the decree of the court below must be affirmed, and the record must be remitted to the court below for the execution of the decree.
Complainant must recover his costs in this court aá against defendant Frazer. But the other defendants must recover their costs (in this court upon the appeal) against complainant.