Detroit Fire & Marine Insurance v. Aspinall

45 Mich. 330 | Mich. | 1881

Marston, C. J.

The complainant company seeks to foreclose a mortgage given it upon real estate by the administratrix of Philip Aspinall deceased.

A license was granted by the probate court to the administratrix to mortgage certain property of the deceased, but •“no time or rate per cent., upon the basis of which said mortgage should be executed, was specified in the license.' No report was made by the administratrix to the probate ■court, of her action in mortgaging said property, and the probate court never passed upon the question of time and rate per cent, contained in said mortgage.”

That the statute (2 Comp. L., § 4626)^* was not complied with, and that this was fatal to the validity of the mortgage, :as such, as decided in Edwards v. Taliafero 34 Mich. 15, must be considered as beyond question.

It is claimed, however, that certain equities exist in favor •of the complainant, under which the mortgage may by the •court be held effectual: among these, the good faith of the •parties; the fact that a mortgage for nearly this amount upon real estate of the deceased, was from moneys received upon •the mortgage in suit paid and discharged, should be considered.

We have carefully considered all the equities presented in favor of the complainant. If a non-compliance with the .statute, § 4626, can thus be avoided, then in all cases where the parties act in good faith, and the money is used to pay •and discharge debts of the deceased, it becomes a dead letter. But it is only for the purpose of paying debts against the estate of the deceased that the judge of probate may empower an administrator to mortgage the estate. Such a construction as is contended for would make the statute in effect a nullity.

The mortgage taken up by the proceeds of the one in suit,, was not upon the same property or any part of the property described in the mortgage in this case. Had this mortgage been given upon the same property, to take up a previous one, then it might become important to consider whether complainant could not to' that extent be subrogated to the rights of the prior mortgagee. Under the facts in this case we are of opinion that no such question can arise, and that the complainant can obtain no relief in this case.

The decree must be reversed and the bill dismissed with costs of both courts.

The other Justices concurred.

* (4636) Sec. 3. Such, order [empowering an administrator to mort•gage the estate for the payment of its debts] shall be obtained by petition to the proper judge of probate, * * and such order shall specify the .amount to be secured by such mortgage or other security, the rate of interest to be given, and the length of time for which such mortgage or •other security shall be given. * *

(4637) Sec. 8. * * said proceedings of the said * * administrator * * in mortgaging or otherwise pledging such estate, shall be reported to the judge of probate, and by him be subject to be confirmed ■ or vacated, and'new proceedings to be had, to the same extent and in the same manner, as near as may be, as is now provided by law in the case •of the sale of real estate.