35 Mich. 151 | Mich. | 1876
Defendant Donner, being assignee from one Matthias Hess of what purported to be a recorded mortgage, executed by complainant and her .husband, Charles Frickee, to said Hess, May 19, 1874, on lot one hundred and twenty-four of Beeson’s addition to Niles, to secure payment of two hundred dollars on or before September first, 1874, with interest at ten per cent., proceeded to foreclose the same at law, and pursuant to the proceedings had for that purpose, the premises were sold to defendant in May, 1875, and a deed was made by the sheriff to him and filed with the register of deeds. On the first day of July thereafter complainant filed her bill to set aside these proceedings and cancel the mortgage. A note which was not negotiable was made by Mrs. Frickee and her husband to Hess, of even date with the mortgage, and for the same debt. The mortgage referred to it, and it went into Donner’s hands as an accompanying security.
The bill alleged that this note was given for the individual debt of complainant’s husband, and that in fact she was a mere surety; that at the date of the transaction she owned lots one hundred and twenty-three and one hundred and twenty-four of Beeson’s addition to Niles, and that lot one hundred and twenty-four was occupied as the homestead, while the other lot had no buildings, and was vacant; that it was agreed be
The bill further alleged that Donner gave time to complainant’s husband.
Donner answered, and proofs having been taken, the court below found that the mortgage was executed on the part of complainant by mistake and was fraudulent, and decreed that it should be canceled, and that the foreclosure proceedings were fraudulent and void.
The claim that complainant was caused to make the mortgage on lot one hundred and twenty-four, either through mistake or fraud, rests on her testimony and that of her husband, and their statements of what occurred are not very consistent or convincing. She swears that she had no talk with her husband or with Hess about mortgaging lot one hundred and twenty-four, but consented to mortgage lot one hundí od and •twenty-three, and that the justice called but once for her signature, and that she had no talk afterwards with her husband
She did not write, but made her mark, and two marks appear. That Hess should have been desirous to have the mortgage placed on the lot containing the buildings, rather than on the other, and that complainant and her husband should have desired to be relieved of his urgency by passing to him a mortgage on the vacant premises, is quite within belief. Lot one hundred and twenty-four was worth some fourteen hundred dollars, and was subject only to a mortgage of five hundred dollars. The vacant lot, however, had been purchased not long before for three hundred dollars, and according to the weight of evidence was worth not much more at the time in question, and was then burdened by an incumbrance of about one hundred and forty dollars. There are some facts which look as though complainant and husband were not unwilling that Hess should accept a mortgagé on the vacant lot in the belief that it was on the other.
On the whole, the weight of evidence is against complainant’s charge that she mortgaged lot one hundred and twenty-
There is no other question to affect the case. The mortgage was good in equity as against Mrs. Frickee. But we think under the circumstances she is entitled to redeem in reasonable time, and must be allowed to do so.
The decree below must be reversed, and the cause remanded, with directions to enter a decree for redemption and for such further proceedings as the case shall require.
The defendant must have costs of both courts.