106 Mich. 269 | Mich. | 1895
The defendant being in possession of certain premises, described as lots 8 and 10, and the north half of lots 2 and 11, of block 70, except two rooms on the second floor of the house thereon (which rooms were occupied by Marriette C. Sanborn), summary proceedings were begun by the plaintiff to obtain possession of the same. From a judgment in his favor, the defendant has appealed.
The record shows that the defendant’s husband, Lewis D. Sanborn, being at the time the owner of the entire premises, executed, a mortgage thereon for $5,000, in which the defendant joined, and delivered the same to the Savings Bank of East Saginaw, as collateral to two notes given said bank by said Lewis D. Sanborn. Said mortgage contained the usual power of sale, was executed on January 9, 1890, and was recorded the following day. On December 3, 1890, Sanborn and the defendant joined in a warranty deed of the premises to Sanborn’s mother,
The point is made that the complaint is insufficient. In substance, it alleges that the defendant is in possession of the premises therein named, and holds the same unlawfully and against the rights of complainant, who is alleged to be lawfully entitled to the possession of the same. Under the decisions in the cases of Caswell v. Ward, 2 Doug. (Mich.) 374, and Bush v. Dunham, 4 Mich. 344, there might be room for this contention ; but counsel have apparently overlooked the later cases of Bryan v.
We next consider the validity of the foreclosure proceedings :
The ¡power of sale: It is said that the bank is a corporation of limited powers, and could not foreclose the mortgage by advertisement. No question is raised over the right of the bank to own this mortgage; and, if it may, it must have the power to foreclose it by advertisement, if it can be so foreclosed while it is such .owner. Counsel concede that some of the courts hold that “ a corporation may execute such trusts as are coupled with an interest in the thing granted, or upon which the power is •to operate,” but say that “it is fundamental that they cannot execute a power not coupled with an interest •in that upon which the power is to operarte.” And they argue, upon the authority of Johnson v. Johnson, 27 S. C. 309, that “a mortgagee’s interest in the property mortgaged is only in the proceeds of the property mortgaged, and it would not therefore be coupled with any interest in the equity of redemption, to which the contract or power of sale relates.” But, if this can be said to be true in this State (see Lee v. Clary, 38 Mich. 226, and Niles v. Ransford, 1 Mich. 338), we think the statute confers the power upon banks to foreclose by advertisement.
1 How. Stat. § 3142, provides that—
“It shall be lawful for any such association to purchase, hold, and convey real estate for the following purposes: * * *
“2. Such as shall be mortgaged tb -it in good faith, by way of security, for loans previously made by, or moneys due to, such association. * * *
“4. Such as it shall purchase at sales under judgments, decrees, or mortgages held by such association,” etc.
Again, 3 How. Stat. § 32085, provides that—
“A bank may purchase, hol'd, and convey real estate for the following purposes, but no other: * * *
*274 “3. Such as it shall purchase at sale under judgments, decrees, or mortgage foreclosures under securities held by it; hut a hank shall not bid at any such sale a larger amount than to satisfy its debt and costs.”
Counsel for plaintiff forcibly suggest that the words “mortgage foreclosures” are unnecessary, and can be given no effect, if banks cannot foreclose by advertisement, as purchases at mortgage sales in other cases would be covered by the word “decrees.”
Signature of the notice of sale: Objections are made to the validity of the sale for the alleged reasons: (1) That the notice was not signed by the mortgagee; (2) that it does not appear that the directors of the bank authorized the foreclosure. To the notice as published was affixed the name of the bank, also the name of the attorney. The evidence showed that thiis was done by the consent and authority of the directors, and the bank availed itself of the advantages arising from, and the results of, the sale. We are not cited to authority for the proposition that all .the details of every-day business in banks must be considered in directors’ meeting, and theur action be spread upon the journal of the meeting. Such a practice would complicate the business of banking, and be at variance with the ordinary course of business as it is commonly done. To go further, and allow a debtor to question the regularity of proceedings on the part of the bank in such cases, would have little reason to support it. The notice was over the name of the bank, and informed the public of the prospective sale. It contained the statutory requisites of a valid notice; and, if its authenticity could be questioned, there is no reason why it should not be vindicated by parol testimony, the same as though the notice were that of a private person who had authorized an attorney to foreclose a mortgage. Unreasonable restrictions and intendments against statutory foreclosures should not be favored. Lee v. Clary, 38 Mich. 229.
Excessive hid: It is said that the amount claimed to be due by the bank was excessive. The amount is not stated, but seems to have been the cost of one insertion of the notice of sale, which was published 13 times, the last being unnecessary. Gantz v. Toles, 40 Mich. 725; Bacon v. Kennedy, 56 Mich. 329. In a case where the mortgagee bid an excessive amount, which was claimed to be due, and failed to pay it over to the sheriff making the sale, the mortgagor was permitted to redeem on payment of the amount of the bid less the excess. Louder v. Burch, 47 Mich. 109. There is, 'however, no presumption that the sum bid was not paid over, and we are cited to no proof upon the subject. Millard v. Truax, 47 Mich. 251.
Having reached the conclusion that the foreclosure proceedings were valid, we will next inquire whether the purchase ripened into a title in plaintiff. This depends upon two questions: (1) Did the assignment of the mortgage operate to annul the foreclosure? (2) Were the quitclaim deed and the assignment adequate to convey a title, redemption not having expired at the time of their delivery? In Niles v. Hansford, 1 Mich. 338, it was held that a transfer of a mortgage pending the advertisement of a notice of sale put an end to the proceeding. But, after
The litigation between Sanborn’s wife and mother, already alluded to, was upon a bill filed by the wife to set aside the deed to the mother. This deed was held to be an equitable mortgage, and the cause was returned to the circuit for an accounting, it being determined that the amount paid by Marriette, the mother, upon the bank mortgage, should be included in her claim against the property. A year was allowed the complainant for redemption. Upon the trial of the present case before the circuit court, the defendant, Florence A. Sanborn, asserted and attempted to show that the consideration for the quitclaim deed from the bank to the plaintiff was paid by or for the benefit of Marriette C. Sanborn, his client. Several questions were asked which, if answered, might have brought out the fact, but the court did nor permit it. If this testimony was admissible, it was upon the theory that the purchase of the bank’s interest amounted to a redemption by Marriette C. Sanborn, who had accepted a deed — i. e., an equitable mortgage — in which it was provided that she should pay this bank mortgage, and that, it being a duty owed to the mortgagor, she could not evade it by claiming title through foreclosure. Had the deed to Marriette not been questioned, a court of equity would have held Marriette primarily liable for a deficiency, in case of foreclosure of the bank mortgage, as between herself and son, Lewis L>. Sanborn; but this would not prevent the purchaser at the sale from acquiring a valid title, whether the foreclosure was in chancery or by advertisement. Had this plaintiff purchased these premises and received a deed upon foreclosure, the only remedy available to the defendant would be a bill to redeem or to set aside the deed, if it was the mother’s duty to pay the mortgage, upon the ground
The defendant’s contention is, in substance, (1) that the foreclosure proceedings were defective for the reasons stated; (2) that the plaintiff acquired no title because of a redemption. We have discussed both propositions, but the further claim is made that these claims raise a question of title, which cannot be tried in this proceeding. It is true that questions of title cannot be tried in summary proceedings; 'and, when it appears that the decision must turn upon a question of adverse title, the case must be dismissed. Butler v. Bertrand, 97 Mich. 59, and oases cited. Rut this must be understood to mean a question of legal title, and it must be raised by the evidence offered in the case. If this were otherwise, a mortgagor could always defeat summary proceedings by denying the validity of the foreclosure or asserting that the premises had been redeemed. Again, this proceeding is brought under a
The further point is made that the defendant was entitled to a three months’ notice to quit under the statute. The proceedings were begun promptly after redemption expired, and there is no room for the claim that plaintiff assented to continued occupancy, if that would make any difference. We think defendant was not entitled to notice. Allen v. Carpenter, 15 Mich. 25.
Lee v. Mason, 10 Mich. 403; Keyes v. Sherwood, 71 Mich. 516.