198 Mich. 676 | Mich. | 1917
This case is in this court upon the appeal of the plaintiff from a decree dismissing her bill of complaint. By her bill filed September 9, 1914, she avers:
That on April 30, 1900, she was the owner of several parcels of land in Bay City, described as follows: Parcel No. 1, lot No. 1, of block 4, Jennison’s Second addition; parcel No. 2, lot No. 3, of block No. 165, late Portsmouth; parcel No. 3, being a part of lots 3 and 4, block 50, plat of Lower Saginaw, as represented .upon the accompanying plan attached to plaintiff’s brief, which, while not in evidence, fairly shows the parcels composing what is called the laundry property; together with the perpetual use and right of way, in common with the other occupants of said lots 3 and 4, in and to the private way extending along the west
That in April, 1909, plaintiff purchased parcel No. 4 as represented on said plan, together with the perpetual use and right of way as above stated. The several descriptions of land will hereafter be referred to by the parcel numbers, as above stated.
That said parcel No. 3 had upon it a one-story and basement brick building erected by plaintiff, and which for a long time previous to plaintiff’s purchase of parcel No. 4 had been used and occupied by her as a laundry, and it became expedient to acquire said parcel No. 4 for use in said business, in connection with parcel No. 3, and that after said purchase, the two parcels were'occupied and used as one parcel by plaintiff in said business.
That commencing in April, 1900, plaintiff from time to time negotiated certain loans from defendant, and secured the same by mortgage on said land as follows:
No. 1, mortgage, dated April 30, 1900, on parbels
No. 2, mortgage dated June 15, 1900, on parcel 3... 2,500
No. 3, mortgage dated March 11, 1903, on parcels 2, 3, 5, and 6 for.............................. 200
No. 4, mortgage dated March 4, 1904, on parcels 1, 3, 5, and 6 for................................. 300
No. 5, mortgage dated September 28, 1904, on parcels 1, 3, 5, and 6 for.......................... 300
No. 6, mortgage dated March 9, 1905, on parcels 1, 3, 5, and 6 for............................... 200
No. 7, mortgage dated October 7, 1905, on parcels 1, 3, 5, and 6.................................. 200
No. 8, mortgage dated February 14, 1906, on parcels 1, 3, 5, and 6 for............................... 300
No. 9, mortgage dated June 29, 1907, on parcels 1, 3, and 5 for................................... 1,500
No. 10, mortgage dated April 22, 1909, on parcels 1, 2, 3, and 4 for................................. 825
WATER STRE.ET
That with each of said several mortgages plaintiff subscribed for a certain number of shares of capital stock of said defendant, executed to said defendant the usual obligation or bond, and she received from it a passbook in the usual form for the entry of payments on each of the several stock subscriptions and mortgages.
The bill avers that about January 1, 1908, upon inquiry, she was informed by defendant that the balances then owing upon all of said loans theretofore made amounted to $4,085.38, and that about April 17, 1911, she was furnished by defendant with a statement that the total amounts then owing by her upon the four mortgages then remaining unpaid amounted to $2,905.37 on January 1, 1911. The plaintiff states that she made the usual weekly payments in the way provided for the repayment of loans by defendant, until the latter part of 1913, at which time she stopped making payments, because she became convinced that many payments which she had made had not been properly credited to her, and because she was informed at that time by defendant that her total indebtedness upon said mortgages was about $3,000, that in the meantime she was informed by the defendant that the said mortgages Nos. 3, 4, 5, 6, 7, and 8 had been paid in full, and that she surrendered to defendant the passbooks issued to her upon said loans, and that the same were then in defendant’s possession.
Plaintiff further stated that since the making of mortgage No. 1 she had sold'all of the real estate owned by her and above described, excepting parcels Nos. 1, 3, and 4, and that all of the proceeds of such
It is averred that during all of the time of plaintiff’s said dealings with defendant, Thomas E. Webster had been the attorney and secretary thereof, and that in all of plaintiff’s transactions with defendant, and in the sale of her several parcels of real estate, and in the sales of her laundry business said Webster had also acted as her attorney, and that most of her papers and vouchers bearing upon said several transactions were left by her with said Webster, and were then in his possession and control, and that she was unable to procure the same after repeated applications, and that on or about February 1, 1914, she again applied to said defendant through said secretary for information as to the state of her accounts with it, and was informed by said Webster that her total indebtedness to defendant aggregated about $3,000, and when she asked for a statement showing the amounts paid by her on said several loans, she was informed by said Webster that it would require too much time and work on the part of defendant to furnish her with such statement, and none had ever been furnished.
The bill further charges that said foreclosure proceedings were irregular, illegal, and void, for the following reasons:
(a.) That said parcels 3 and 4, being contiguous, and occupied and used as one parcel, should have been sold as one parcel.
(6) That the rights of way described in said mortgage and notice of sale should have been offered for sale, and sold as a part of such single parcel composed of the two parcels Nos. 3 and 4.
(c) That the purchase of said mortgaged property by the mortgagee was not fair and in good, faith, but was unfair and unjust.
(d) That the amount claimed to be due in said foreclosure notice was grossly in excess of tie true amount of the indebtedness, even if there was anything then owing on said mortgage.
(e) That the prices at which the several parcels were sold to defendant were entirely inadequate, much less than the real value thereof, and were oppressive and unfair.
(/) That the said foreclosure notice did not disclose the fact of the prior incumbrances; nor did it state that the sale would be made subject thereto.
(g) That no statement or announcement was made at such sale disclosing the fact of the prior incumbrances, nor of the amount of same.
Plaintiff in her bill alleged that she was ready and
The defendant answered very fully and specifically, but claimed no affirmative relief; and upon the issue thus formed the case went to a hearing before Judge Collins on February 25, 1915. The hearing, however, was not closed, and in December, 1915, application was made to amend the bill of complaint. This was opposed, but on December 30, 1915, Judge Collins entered an order allowing the proposed amendments, being paragraphs 24a, 245, and 24c, and the prayer in paragraph Ilia. These amendments introduced into the case new questions.
By paragraph 24a plaintiff claimed that all of said mortgages contracted for the payment of interest at a rate in excess of the rate limited by law and that in consequence thereof, all of said contracts were usurious, and defendant was not entitled to recover any interest thereon, and plaintiff was entitled to have all payments made by her apply on the principal of said indebtedness.
By paragraph 24c it was stated that all of said loans were secured by mortgages upon the same properties or some of them, so far as the same were owned by plaintiff, at the time of the respective loans, excepting the last, the loan of $825 on April 22, 1909, which was also secured by parcel No. 4, which was bought from the proceeds of said loan at or about the time the loan was negotiated, and that after the first of said loans each successive loan was really .an increase of, and an addition to, the original loan of April 30, 1900; the mortgages and obligations made at the time of the procuring of the successive loans being
Paragraph Ilia, of the amended prayer was to the effect that in stating • said account defendant be required to apply all payments upon said mortgages which were made and had theretofore been applied in payment of interest thereon to and upon the principal of said mortgages.
The defendant fully answered said amendments, denying the several averments. Further testimony was taken, and the case treated as submitted, except that briefs were to be filed. In the meantime Judge Collins died. On October 24, 1916, the case came on to be argued before Judge Coumans upon the testimony which had been taken before Judge Collins. Plaintiff’s counsel, at that time, against the objection of defendant’s counsel, was permitted to testify relative to certain computations claimed to have been made from the books and schedules produced by defendant.
Such right is expressly granted by the general statute relating to foreclosures by advertisement, where there is a power of sale. Section 14949, 3 Comp. Laws 1915; Gage v. Sanborn, 106 Mich. 269 (64 N.
There is no more necessity for an accounting in case of such a loan than in any other case where money is borrowed and partial payments made from time to time. Many such sales have been made in the State, and many titles depend upon the validity of such foreclosures. There is no merit in the claim.
Should parcels 3 and 4 have been sold as one parcel? This involves a question of fact. It is undisputed that this property was not occupied and used as one parcel at the time of the sale, and had not been for a number of years. The property had not been used as a laundry for a number of years prior to the foreclosure, and the boiler and all laundry machinery had been removed, and the temporary building taken down. During most of this intervening time parcel 4 was rented to the Jennison Hardware Company and used by it for storage, in connection with its business. The laundry building proper was rented to another tenant, and used as a secondhand store. It also appears that parcel 4 was not covered by any of the other three mortgages, while all of the other property was. In view of these facts, and under the statute and authorities cited by plaintiff, the sale was properly made in parcels.
Was the sale void because the right of way in the alley was not specifically sold and described in the sheriff’s deed? We do not understand how plaintiff has any cause for complaint in this regard. If the easement was of value, and was not sold, it still belongs to her, free from the mortgage, which was satisfied by the sale. But it seems clear that this easement was appurtenant to the dominant estate, and a description of it was unnecessary, and that it was effectually conveyed as appertaining to the lands described.
*689 “Where an easement is annexed or appurtenant to land, it passes as an appurtenance, with a conveyance or devise of the dominant estate, and need not be specifically mentioned in the deed or will.” 14 Cyc. p. 1184.
See, also, Walz v. Walz, 101 Mich. 167, 170 (59 N. W. 431) ; Lathrop v. Elsner, 93 Mich. 599 (53 N. W. 791); Smith v. Dresselhouse, 152 Mich. 451 (116 N. W. 387); Bean v. Bean, 163 Mich. 379, 397 (128 N. W. 413).
As the notice and the deed covered both the land and its appurtenances, both were sufficient to include the easement.
Was defendant’s purchase fair and in good faith? The mortgages were all of record in the office of the register of deeds. If no information was given of prior mortgages, the plaintiff was not injured thereby. The.giving of such information would, of necessity, tend to lower the price, and not raise it. The fact is that only Mr. Webster, the secretary of defendant, and the deputy sheriff were present at the sale.
Should the notice of foreclosure have alleged the existence of the prior mortgages? We know of no such requirement or practice. It is urged that the notice should have advertised the sale of an equity of redemption. But plaintiff did not have a mere equity of redemption in this land, because the prior mortgages had not been foreclosed. She was still the owner of the legal title. Counsel for plaintiff quotes from 27 Cyc. pp. 1468, 1469, but fails to quote the preceding sentence:
“If the notice attempts to describe the state of the title, it must be done with exactness.”
Was there an excessive amount claimed in foreclosure notice? There is considerable controversy between counsel as to what is properly before the court
*691 “A mortgage sale is not necessarily invalid because more is claimed than is in fact due (Klock v. Cronkhite, 1 Hill [N. Y.], 109), provided the claim is in good faith (Jencks v. Alexander, 11 Paige [N. Y.], 619). The excessive claim would be a circumstance only of more or less importance according to its magnitude, or apparent want of good faith, if attempt was made to redeem afterwards.” Millard v. Truax, 50 Mich. 343 (15 N. W. 501).
See, also, Damon v. Deeves, 62 Mich. 465 (29 N. W. 42) ; Emmons v. Van Zee, 78 Mich. 171, 175 (43 N. W. 1100); First State Bank v. Day, 188 Mich. 228, 236 (154 N. W. 101); 27 Cyc. p. 1469.
The period of redemption had not expired when the bill was filed, and when the period was about to expire defendant entered' into a stipulation extending the period of redemption until 30 days after the decree below. Unless the sale is to be set aside as void, the plaintiff’s right to redeem must be held to have expired.
Was plaintiff entitled to an additional credit of $1,~ 000 from the proceeds of the sale of the laundry to Bedworth and McQuater? This presents purely a question of fact, upon conflicting testimony. We shall not repeat the testimony here, but content ourselves with saying that a careful examination of the evidence leads us to the conclusion that the plaintiff has not sustained the burden of proof resting upon her, and we agree with the conclusion of the court below.
It is claimed that the mortgage was usurious, and that therefore plaintiff is entitled to have all interest payments applied on the principal of the several loans.
We are satisfied from the evidence that there was no intention to collect a higher rate of interest than the law allowed — no device or scheme on the part of defendant to collect usury. To constitute the charge of usury, there must be an intent to do something which is in violation of the statute. Green v. Grant,
“Where the amount of interest erroneously allowed is insignificant, it has been held, under the doctrine of de minimis, not to require correction.” 22 Cyc. p. 1570.
Plaintiff claims that mortgages 1 and 2 are usurious on the ground that the defendant, instead of allowing competitive bidding for the funds of the association, established a fixed premium, which all applicants were required to pay. This claim could not affect the validity of this foreclosure, unless mortgages 1 and 2 have been overpaid, and such overpayment can rightfully be applied on this mortgage; the provision relative to competitive bidding having been repealed before this mortgage was executed.
There is no controversy as to the rule established by the cases cited by plaintiff. In our opinion, the plaintiff has wholly failed to prove that the defendant’s funds were not offered to the highest bidder. In fact, there is, in our opinion, a clear preponderance of the evidence upon this subject in favor of the defendant’s claim. We shall not further discuss the question.
Finally, it is claimed that all of these mortgages were usurious because each contained a clause that the borrower should pay any tax assessed upon the mortgage, while the loan itself bore interest at the highest legal rate. This clause, we think, was mere surplusage, because the mortgages held by these associations are, and always have been, exempt from taxation. Section 10011, 2 Comp. Laws 1915; National Loan & Investment Co. v. City of Detroit, 136 Mich. 451 (99 N. W. 380).
The question here presented is controlled by Union
After a careful examination of this somewhat intricate record, we are of the opinion that the learned chancellor reached the correct conclusion, and the decree of the court below is affirmed, with costs to the appellee.