44 Mich. 578 | Mich. | 1880
Many topics are agitated in this ease, but they are generally moot questions. Both counsel have assumed that the bill is filed under the statute to quiet title. Admitting this to be correct, the record discloses insuperable objections.
Waiving the point raised by the defense that complainant is proved to have no title, it is only needful to refer to the defect relative to possession.
The subject matter of the suit is a parcel of land of lot 39 and seven feet off of lot 40 in Negaunee, covered by a building containing two stores and several rooms above suitable for various purposes. The bill applies to the premises as an
If therefore we contemplate the bill as counsel have regarded it, the case it makes is different from the case made by the facts. But the court is not bound by the opinion of counsel concerning the theory of the bill. We are to look at the -case made, and though allegations appear which are appropriate to a bill under the statute to quiet title, still, if in fact the bill is constituted to call for redemption and on grounds of equity to set aside or displace interfering obstructions, a case is presented which falls under the inherent jurisdiction of the court and needing no aid from the statute. Ormsby v. Barr 21 Mich. 475 ; s. c. on motion for rehearing 22 Mich. 80; Jones v. Smith id. 360. See also King v. Carpenter 37 Mich. 363. And this bill is so far within this theory as to make it expedient to see what in effect is the case actually set forth under it.
The allegations are that in 1867 the complainant owned adjoining lots 39 and 40 in Negaunee, each being thirty-three feet in width, and with his family resided in a small building situated on the east twenty-six feet of lot 40; that on the 26th of September of that year he borrowed of John Maroney, for the purpose of erecting a block on the premises, the sum of $800 to be repaid in one year with interest at ten per
Although it may not be strictly necessary for the purpose of reaching a decision, still a brief reference to what we understand to be the objections against the sale on the executions will not be quite out of place. The first seems to be that, as there were three executions, it was contrary to law to offer the premises at once and under all these writs. It occurs immediately to inquire how otherwise the property
Clearly there was no other course open to the sheriff in the absence of an authoritative direction outside of his writs. He •could not justify himself in making any distinction, and had he assumed to sell on one alone the court must have given the same effect to it as though he had sold on all. The principle was acted on in Campbell v. Ruger 1 Cow. 215.
It is further objected that inasmuch as the law requires where executions are laid on “ several known lots, tracts or parcels,” that “ such lots, tracts or parcels shall be separately exposed for sale,” it was not lawful to sell lot 39 and the seven feet off of lot 40 as one parcel. The point has no substance. The premises were neither “ several ” or two “ known lots, tracts or parcels.” By covering lot 39 and the little adjoining strip of. lot 40 with the new building under ■the circumstances proved, the complainant as to this question converted the undivided or whole lot 39 and the fragment of lot 40 into an entirety and caused it to be one “ known parcel ” instead of two. It would have been absurd to treat this ■strip of seven feet in width and encumbered by the side of the new block as a separate and distinct parcel for the purpose of levy and sale. A leading object of the statute is to ■secure the best price attainable, and nothing could be much better adapted to defeat it than such a construction and application as this objection implies/
The last point is that the sale of this strip off of lot 40 was wrong because lot 40 was complainant’s homestead. The fact necessarily involved is not true. The strip in question, i whatever may have been the character of the whole lot originally, was not a homestead or parcel of one. It was severed from the remaining twenty-six feet of the lot by the voluntary act of complainant. He retained his place of dwelling ■on the rest of the lot, and deliberately appropriated the seven
It has been observed that the bill makes no complaint of' the mortgage and contains no averment against the validity of the sale on foreclosure or of any of the-proceedings. The-sufficiency of the foreclosure to carry a good title is virtually conceded. The position is that the proceedings were prevented from ripening into a perfect title in Maynard by the fact of payment and substantial satisfaction of the mortgage-on the 12th of April, 1870, and about three months before the expiration of the time allowed for redemption, and this is the central fact and essential equity in complainant’s case. The mortgage was executed by both complainant and his wife in 1867, before the building was put up, and on both lot 39 and lot 40. If in fact it was not paid, the case fails. •No foundation l’emains on any possible theory of the bill. A perfect title followed, and the controversy about the sale on the executions, is, for the purpose of the present case, of no-importance.
The important inquiry, therefore, is whether the evidence sustains the complainant in regard to this pivotal fact in the case made by his bill. There is substantial agreement in the-testimony that complainant on the 12th of April, 1870, conveyed the east twenty-six feet of lot 40 for $1050 with the-approbation of Maynai’d, and that the proceeds in money and short-time securities went immediately into Maynard’s hands. That he gave the buyers his written undertaking to release this purchase from the mortgage on their paying those securities on or before July first is well proved ; and the fact is also established that on their completing the pa}'ment some few weeks later than the time fixed, he did release by giving them his quit-claim deed.
But the disagreement is absolute in regard to what application of the $1050 was agreed on. Complainant swears positively that this was raised by sale of the twenty-six feet of lot 40 and paid to Maynard and received by him in satisfaction of the mortgage debt and redemption from the foreclosure, arid that there was an excess of $72 or $73 which was agreed to be applied on the judgment debts, and that the whole transaction, except the conveyance of the twenty-six feet, was oral, -and that he, complainant, received no writing whatever in regard to it. To some extent the complainant is corroborated. But the'proof is clearly against him and a single item from one of his witnesses lets in some light concerning the likelihood of his being mistaken. In consequence of liquor he was not always in a condition to justify confidence in his attention or his memory.
Maynard swears that the proceeds of the sale of the twenty- ■ six feet of lot 40 were not received on the mortgage, but on the judgment indebtedness, and that the agreement was that they should be so applied; that only $600 of the $1050 was received on the 12th of April, the residue not being realized until later, and that he gave complainant on that day his written engagement to apply the amount then received, $600, on the judgment indebtedness. The evidence supports this explanation. The legal time for redeeming against the execution sale had already expired and it is probable that complainant was trying to rescue the property from that sale rather than from the ether on which there still remained three months, and if the arrangement had been as complainant now thinks, that the mortgage was considered satisfied, the
As already stated, the main fact of complainant’s case, that the mortgage was paid, is actually disproved, and the effect of the evidence is that nothing was ever received applicable to it, and that Maynard never intended to open the foreclosure unless on payment. The judgments were given May 9, 1868, and the damages aggregated, after correction of one of the judgments by striking off $100 which had been included by mistake, the sum of $1177.03, and computing interest at seven per cent, to the 12th of April, 1870, when the homestead property was sold, the sum at that time was $1335.62. Deducting the proceeds of that sale, there still remained $285.62 exclusive of the taxed costs, which were $57. If the sum at which the property was struck off on the execution sale is taken as a basis, the difference is small. The sale was December 28, 1868, and the price $1200. On April 12, 1870, it amounted, with interest at seven per cent., to $1309.50, and deducting the price obtained for the homestead there would yet remain $259.50.
"Without stopping to notice the theory of complainant’s pleading or the shape of his case as marked out by his oath, the weight of evidence determined that the arrangement or understanding between complainant and Maynard, whatever was its precise character, was terminated in the fall of 1870, and that the whole amount which had been received at that time was considerably less than the judgment debts whether we consider the damages and interest, or the price bid on the execution sale and interest, as the equivalent of the debts, and that although the mortgage debt was accumulating interest at ten per cent., no surplus arose out of the transactions referred to, to be applied upon it.
I am of opinion that the decree dismissing the bill cannot be rightly disturbed and should be affirmed with costs.