18 Mich. 110 | Mich. | 1869
Ohauncey S. Goodrich, Sr. the mortgagor, must be regarded as having executed this mortgage at the request of Harrison W. Goodrich and Ohauncey S. Goodrich, Jr. (who were the only real debtors), and for their benefit, and to secure their debt. The note or contract for the payment of the money, recognizes the fact that the mortgage was executed for this purpose. Had the mortgagor been living at the time of the redemption, and had redeemed and paid the mortgage to save his land, it would have been so much money paid to the use of Harrison W. Goodrich and Ohauncey S. Goodrich, Jr. the real debtors, for which he might have sustained his action against them had they been living.
The mortgagor’s cause of action would have arisen from the payment made on redemption, and the statute would begin to run upon it from that time, without any reference to the time when the original creditor’s right of action accrued against the debtors themselves, on their note
If the remedy upon the mortgage, as a lien upon the land, had been barred by the statute before foreclosure, and the mortgagor had afterwards paid the mortgage or allowed it to be foreclosed and the land to be sold, without taking-advantage of the statute, there might be a question whether such voluntary payment would entitle him to an action against the parties originally liable for the debt. But the remedy on this mortgage to enforce the lien upon the land, was not barred at the time of the foreclosure and redemption — even admitting, as urged by the counsel for the plaintiff in error, that the action on the note had been barred in six years from the time the last instalment became due. —Mich. Ins. Co. v. Brown, 11 Mich. 265.
The relation of the mortgagor to the principal debtors was substantially that of a surety for their debt; with this difference from ordinary suretyship, that he had bound his land for the debt, instead of binding himself personally. And the real debtors, after having induced him to execute the mortgage for their benefit, and thus to place his land where it might be taken for their debt at any time within twenty years, cannot, after the land has been thus taken within that period, turn around upon him and refuse to repay the amount, because the personal action of the original creditor upon the paper which they gave him for the debt, has been barred by the statute of limitations.
But the remedy of the creditor against the real debtors upon their note or contract was not barred, as is claimed, in six years from the maturity of that paper. That note — or rather special contract — was under seal; and an action of debt might have been brought within ten years (which had not expired when the redemption took place, or when this
Sec. 4550 Compiled Laws, does not compel a party to resort tc an action of assumpsit upon a sealed instrument.
Such would have been the rights and duties of the respective parties, had all of them been still living. Their deaths have not changed these rights and duties, except that they are now vested in or devolved upon their respective executors or administrators.
But the mortgagor dying, devised the mortgaged premises still subject to the mortgage, to Ohauncey S. Goodrich, Jr. And had the latter not been one of the original debtors, bound (with Harrison W. Goodrich) to relieve the land from payment of the mortgage, and had he been still living, and redeemed the land from the mortgage sale, there can be no doubt that he would have stood in all the rights of the mortgagor to enforce payment of the whole amount thus paid against the real debtors. In other words, he would have been subrogated to all the rights of the mortgagor. But, being himself one of the original debtors, jointly liable with Harrison W. Goodrich to relieve the land from this charge; he, in paying the whole redemption money, pays- one half, and only one half, in discharge, of his own personal obligation ; the other half he pays in discharge of the like obligation of Harrison W. Goodrich; and must therefore be entitled to recover of the latter this one-half by way of contribution, as- so much money paid to his use.
' Now it does not alter the case in principle, that his administrator has redeemed after his death; and the redemption gives him the same right to prove the amount against the estate of Harrison W. Goodrich. The mortgaged premises were, by the statute, assets in the hands of the administrator of Ohauncey S. Goodrich, Jr. The condition of the estate is not shown; but in the absence of any showing,
These considerations settle the case in favor of the claimant, unless his right was cut off or affected by the fact (which for the purposes of this case, under the offer to prove, may be taken for granted^) that Harrison W. and Chauncey S. Goodrich, Jr. who signed the note or contract for the payment of the money, were, at the date of the papers co-partners in trade with'one Cornelius D. Goodrich; that the money obtained by the note and mortgage was borrowed with the knowledge and consent of the partnership, and used in the business of the firm, which was still unsettled, and the partnership debts not all paid.
This offer was not to show that the money was borrowed on account of the firm; and such was not the legal effect of the state of facts offered to be shown, in connection with the contracts in writing, executed by the two partners who borrowed the money. The loan was made by the two only, and they alone became personally responsible to the creditor.
Their paper, and not that of the firm, was given for it; and the creditor could not have sustained an action against the firm, nor have rendered them responsible for it, though it actually went into the firm and was used by them. The mode in which it was used or the hands into which it subsequently passed, did not alter the legal effect of the written contract by which it was obtained. — Emly v. Lye, 15 East. 7; Exparte Hunter, 1 Atk. 225; Bevan v. Lewis, 1 Sim. 376; Graeff v. Hitchman, 5 Watts, 454; and see Loyd v. Freshfield, 2 Carr. & P. 325; Smith v. Craven, 1 Cromp. & Jer. 500.
The legal effect of the transaction shown by the papers executed, when taken in connection with the facts proposed to be shown, was to make Harrison W. and Chauncey S. Goodrich, Jr. the borrowers, and only debtors, and the
This separate and independent contract, by which the money was loaned to the firm, can have no bearing upon the rights or duties, growing out of the original contract and mortgage by which the money was obtained, nor could it alter their duty to protect the -land from the collateral mortgage given at their request.
The result is that the commissioner and the Circuit Court were right in allowing the claim; and the judgment of the Circuit Court must be affirmed, with costs to the appellee.
