36 Mich. 482 | Mich. | 1877
This is a suit by the administrator of Amasa L. Clark to foreclose a mortgage given to him by the defendant Eli Stilson and his wife. The defendant Sebring is brought -in as claiming an interest in one of the two parcels of land described in the mortgage, as subsecpient incumbrancer, pur■ehaser or otherwise.
The defendants Stilson and Sebring set up separate defenses, and the latter has filed a cross-bill. The defense of each may best be considered separately.
The mortgage was for the sum of two thousand dollars, and bore date February 8, 1869. On the 3d day of March, 1813, Stilson claims to have made an agreement with Clark, by which the latter was to proceed to foreclose his mortgage ■and obtain title under it, and then to take one of the two parcels of land in satisfaction, conveying the other to Mrs. Stilson. He, however, demanded two hundred and fifty dollars as a bonus for doing this, which Stilson avers he paid; and he was also to leave the land he should take in the possession of Stilson, who was to pay what in the agreement was called interest, and which we understand was in fact equal to ten per centum annually on the amount then
“Article of agreement this 2d day of March, 1872, between Amasa L. Clark of the city of Battle Creek, Calhoun county, Mich., of the first part, and Eli Stilson of Boss, Kalamazoo county, Mich., of the second part. The said party of the first part does hereby agree that as soon as he shall receive deeds of the lots of land in Boss, Kalamazoo county, Mich., described as follows: Being the west half of the northeast quarter of section number twenty-four, in towmsliip number one south of range number nine west, containing eighty acres, and the one described as the north half of the southeast quarter of section thirteen, in town one south of range nine west, containing eighty acres, that he will convey to Emeline Stilson, by good warranty conveyance, the lot described as follows: The west half of the northeast quarter of section number twenty-four, in township-number one south of range number nine west, containing-eighty acres. The said party of the second part agrees to pay to the party of the first part interest on twenty-six hundred -dollars at ten per cent, per annum from the time the-deed is conveyed to Emeline Stilson until such time as he shall sell the lot described as follows: The north half of the southeast quarter of section thirteen in town one south of range nine west, containing eighty acres; it being mutually understood by and between said parties that the said party of the second part is to have possession of the lot last described, until such time as said party of the first part shall sell it.
“It is agreed that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators and assigns-of the respective parties. In witness whereof the said parties have hereunto set their hands and seals the day and. year first above mentioned.
“A. L. Clark,
“In presence of “Eli Stilson.
“James T. Alexander,
“Ci-iauncey Webster.”
Subsequent to this agreement Clark proceeded to a statutory foreclosure of his mortgage, and the lands were struck off to him and a deed given. It is now said that the sale was void under the decision in Lee v. Mason, 10 Mich., 403, because the two parcels of land were sold together for one gross sum. This being so, it is argued that Clark never perfected his title. This would certainly be true as to any third party who might have been owner of any lien upon or interest in the land; but it is not so clear that such would be the effect as to either Clark or Stilson. The requirement that the sale shall be made in parcels, is in the interest of the party or parties entitled to redeem, and to protect their right to redeem each parcel separately; but if
Sebring’s defense is based upon a supposed vendor’s lien, upon the parcel of land on section thirteen. It is conceded that Stilson purchased this land of Sebring, and the purchase price has never been fully paid. December 19th, 1871, Sebring obtained a judgment against Stilson for one thousand three hundred and twenty-four dollars, which is supposed to embrace the balance of this purchase price. The judgment was obtained in a suit in which not only was the purchase price of the land counted on, but also the value of personal property to the amount of one thousand dollars or so. ■ By virtue of au execution upon this judgment, the parcel on section thirteen was levied upon and sold to Sebring, after Clark had sold under the foreclosure at law. The sum at which the sale was made to Sebring was eight hundred dollars, and this now represents the lien,
Our conclusion is, that the only relief which complainant could have been entitled to was a decree for the sale of the lot on section thirteen. Sebring’s purchase of this lot on his execution was not paramount, but subordinate, to the right of Clark to realize his debt from that lot, since Sebring by his purchase could obtain no better right than Stilson himself had, and Stilson’s title we find to have been subject to a lien for that debt. The decree in accordance with these views must be so drawn as to protect the rights of Mrs. Stilson in the other lot, and she should recover her costs of both courts. As against Sebring, the complainant is entitled to costs.