Carter v. Lewis

27 Mich. 241 | Mich. | 1873

Graves, J.

The complainant filed this bill to settle his right as a subsequent mortgagee, .to redeem a prior mortgage which -had been foreclosed at law, and to obtain an adjudication upon the effect of measures taken to produce such redemption. The sale under the foreclosure at law of the prior mortgage was made on the first day of November, 1870, and the time given by the statute for redemption in such cases is one year from the sale. Before the expiration of the year, and on the 30th day of October, 1871, the complainant called on the register of deeds at his office, for the purpose of making redemption pursuant to the statute, and the circumstances which then occurred are claimed by him to have worked such redemption. The defendant maintains that complainant was in no situation to redeem, but if he was, that the course taken was ineffectual. The court below decreed that complainant was entitled to redeem, and, moreover, that the acts done amounted to a redemption-From that decree the defendant has appealed, and she makes two objections.

The first* which was faintly pressed on the hearing, is supposed to be supported by the terms of § 6922, Comp. L., where provision is made for redemption in cases of foreclosure under the power of sale. It is said that in this state, and at the present time, a mortgagee can hardly be considered as holding “ under ” the mortgagor so as to come within the description of the class allowed to redeem within the year from the sale made under the power.

While we do not admit that this statute, which was made to regulate the exercise of the power of sale, would preclude a subsequent mortgagee from redeeming, even if the terms were such as to confine the right to those holding “under” the mortgagor, we find- that another passage in the law, which seems to have been overlooked, is so plain and ample as to take away all pretense for the objection. The right to redeem is not only given to “any person lawfully claiming under,” but likewise to “any person lawfully claiming from ” the mortgagor, and certainly there is no possible room for saying that the mortgagee does not claim from the mortgagor.

In support of the second objection it is urged that the register of deeds is allowed to receive nothing but money for redemption where the proceeding, as was the case here, is left where the statute leaves it; but that the register in this instance received the private check of complainant, and not money. We do not question the proposition, that the register has no authority from the statute to receive any thing besides money, and the circumstances require no opinion as to what would -be the effect upon the mortgage ■and foreclosure proceedings caused by his cancelling the foreclosure deed and noting the mortgage record as satisfied, when he had received something besides money in redemption. According to the admitted facts, when fairly considered, the complainant did pay the amount in money to the register. It was not essential that there should be a transit of the money from the hand of the complainant to the hand of the register; nor was it indispensable that the sum should in dollars and cents be counted out in lawful money at the moment, and left in the room where the register had his office, or placed about his person. The form and shell of the transaction could be of no moment. The law requires payment to the register, and if the proceeding is marked by good faith, and a payment is understood, and the money is actually lodged at some convenient and proper place, in exact accordance with the wish and ■direction of the register, it is a payment to the register.

The question in the present case is not whether, by the mode adopted, there was a chance that payment might not be accomplished, but it is whether in point of fact it was accomplished within the time. How, the real import •of what took place cannot be mistaken. The complainant was prepared to pay the money and desired to pay it. He was not seeking to pass off his check as payment. He offered the register lawful money and desired him to accept it. The latter being too busy to count it, but knowing the amount which was needed, for his own personal convenience, and merely to save the necessity of counting, hit upon the expedient of taking a check for the amount, and procured the complainant to leave the money in bank where the check would apply to it. The check, as a substitute for the counting, was given as requested, and the money remained in the bank subject to the register’s call, and in the course of three or four days the latter called with the check and found the money ready. It had been there all the time. Instead of drawing the cash the register then took a certificate of deposit, which he preferred to hold in lieu of money.

Now, -when in good faith and in precise accordance with the express direction of the register, and who does not appear to have questioned the transaction as a payment,, the complainant gave his check and provided and kept the money at the bank in completion and execution of the scheme of payment, the money was paid “to the register”' and was in his hands for those entitled to it as redemption money.

The decree below should be affirmed, with costs.

The other Justices concurred.