Gilbert v. Haire

43 Mich. 283 | Mich. | 1880

Cooley, J.

No one disputes that Mr. Burnham, the petitioner, had a legal right to have all the other lands which were embraced in the Gilbert decree sold for its satisfaction, before resort should be had to the parcel upon which Burnham himself had a lien. 'This parcel was the first which John Haire, the mortgagor in the Gilbert mortgage, had alienated after that mortgage was given, and by a well-settled principle of equity Burnham had a right to understand that all the remainder stood first charged with the payment of the Gilbert debt. Cooper v. Bigly 13 Mich. 463; McKinney v. Miller 19 Mich. 142.

It is equally unquestionable that by the management of Bobert A. Haire, who had bought the Gilbert decree and directed the sale under, it, Burnham has been deprived of the benefit of this equitable principle. The lands were indeed sold under the decree in the proper order; but taking advantage of Burnham’s ignorance of the sale and absence from it, all the other parcels were bid in by Bobert A. Haire for comparatively insignificant sums, while the parcel which constitutes Burnham’s security was sold and bid in for all it was worth. In that way more than one-half the decree was satisfied by the sale of a parcel not worth more than one-fifth as much as • the remainder, and this the very parcel that should not have been sold at all until all the rest had been fairly applied. It is impossible to doubt that this arrangement was deliberately planned in order to cut off equities which were well known and understood; and it was peculiarly unjust, since Burnham had not been made a party defendant to the Gilbert foreclosure, and had no reason to expect that his just right to redeem would be cut off under that decree, when the property chargeable in advance of his for its satisfaction was worth at least three times as much as was due upon it. It is idle to say that Burnham has lost no right by the sale; for though his right to redeem has still a nominal existence, yet unless he can redeem all the lands and be subrogated to the rights of Robert A. Haire, which would be vigorously contested, the right would be merely nominal, and utterly worthless.

Under such circumstances equity would become an instrument of gross oppression should it refuse relief. It is not necessary in giving it that Robert A. Haire should be charged with and convicted of a legal fraud; it is sufficient that he has so enforced his legal rights as to work a gross injustice. The mortgaged lands, which were a security for the payment of the Gilbert decree in advance of the parcel which constituted Burn-ham’s security, were worth fi;om $12,000 to $15,000, and were sold for less than $2500. The inadequacy of price is so great as to shock the moral sense; and the sale should be opened without hesitation on the petitioner complying with suitable terms. Bullard v. Green 10 Mich. 268.

The circuit court required Burnham to give ample security that on a resale he would bid for the parcels which were first charged with the satisfaction of the Gilbert decree a sum equal to its amount; and also for the payment to Robert A. Haire of all sums expended by him in improvements on the premises since his purcbase, less a reasonable rent for the premises for that time. On these conditions the sale was set aside'and a resale ordered.

The order is strictly equitable, and must be affirmed with the costs of this court.

The other Justices concurred.