104 Mich. 527 | Mich. | 1895
Byron S. Ashley, being the owner of certain premises in the city of Jackson, on the 15th of June, 1886, executed a mortgage for the sum of $2,150 to-Frances J. Wall and William Duifany, which was recorded on the same day. On the 14th of September, 1888, he-executed a second mortgage covering the same premises, to Gideon O. Draper, for the sum of $970, which was recorded on the 27th of September, 1888; On the 19th of February, 1889, Duifany and Wall filed a bill in chancery to foreclose their mortgage, but did not make Draper a-party defendant. The sale was made on the 8th of March, 1892, and the premises were purchased by the mortgagees, Duff any and Wall, for the amount of their mortgage, interest, and costs, — $2,500.37. Wall subsequently quit-claimed to Duifany, and on the 12th of April,'1892, Duffany contracted to sell the premises back to the mortgagor,
“I have examined abstract for Ashley loan, and find! the same correct down to April 6, 1892, and to William Duffany. We should have deed from Duffany to Ashley, and our mortgage discharged."
This reference was to the $500 mortgage which had been executed by Duffany to the association. The president of the association testified that, when the loan was made, he understood that Duffany and Wall had acquired a good title to the land under their foreclosure, and that such foreclosure operated to cut off all previous mortgages. The attorney who made the investigation testified that he
Default having been made by Ashley upon the mortgage executed to the association, proceedings were commenced to foreclose by advertisement. Thereupon Draper filed his present bill of complaint to foreclose- his own mortgage, to restrain the foreclosure of the mortgage of the building and loan association, and to have his mortgage declared a first lien upon the property, and entitled to priority over the mortgage of the building and loan association. The loan association filed an answer in the nature of a cross-bill, asking that its mortgage be declared entitled to priority, and that the property be sold to satisfy the amount due thereon. A decree was granted in accordance with the prayer of the cross-bill, and complainant appeals.
The failure of Wall and Duffany to make the complainant a party to the foreclosure proceedings instituted by them left with the second mortgagee the right to redeem from the first mortgage (2 Jones, Mortg. 1425, 1431; Avery v. Ryerson, 34 Mich. 362); and, had the mortgage to the building and loan association been executed by Wall and Duffany, there would have been little difficulty in saying that the association was subrogated to the rights of the first mortgagees, and was entitled to priority over the com
The circuit judge was of the opinion that the officers of -thé association had been guilty of no laches in receiving this mortgage supposing it to be a first lien, and we think the facts shown by the record justify that conclusion.
The decree of the court below will be affirmed, with costs.