100 Mich. 50 | Mich. | 1894
Lead Opinion
On the 16th day of October, 1889, defendant Becker sold and conveyed to defendant Meier 160 acres of land for the sum of $3,000. Meier had no means, and Julius Grunert was to advance to. Meier certain moneys. Becker, Grunert, and Meier had an interview. Grunert agreed to advance the sum of $1,500, but
Meier defaulted upon the first year’s interest, and Grunert (since deceased) filed this bill to have his mortgage declared the first, and to foreclose the same. A decree pro confesso was taken against Meier. Becker answered, admitting that Grunert’s mortgage was to be first, but, although both mortgages are silent upon the subject, set up that the agreement was that Grunert should not foreclose his mortgage until the end of the five years, and that in the mean time, in case Meier should fail to pay the interest and principal of the Becker mortgage as
“ This agreement, made between Henry Becker and Julius Grunert on the 16th day of October, 1889, witness■eth said Julius Grunert agrees to pay to Henry Becker if the said Meier, who gave a mortgage, fails to pay Henry Becker, the said Julius Grunert agrees to pay the said Henry Becker the balance what he owes on said farm described in mortgage.'”
Grunert insisted upon the hearing that this paper was not understood by him, and that he was. imposed upon; but we think the fact of execution, with knowledge of its contents, was fully proven, whether he understood the legal effect of the writing or not. The record utterly fails, however, to- establish the other agreement set up by Becker. Hnder this supplemental agreement, Grunert ■occupied the situation of a surety, simply. The only consideration for this agreement was the priority of his mortgage. The only advantage that such priority gave him was the right to cut off Meier upon his default. Nearly four and one-half years of the' five have now elapsed, and ■during all that time Becker has practically defended Meier’s possession. In the mean time the interest on Becker’s mortgage has accumulated so that the principal, the interest, and the costs of foreclosure approach the original consideration for the farm; and, from the testimony in this record, it is doubtful whether the farm will sell for sufficient to satisfy that claim, with the costs of sale. It would be grossly inequitable, in view of the fact that, by Becker’s conduct, complainant has been deprived of all benefit and advantage of the priority of his mortgage, to compel him now, not only to lose his own claim, but to pay Becker’s.
The proceeds of the sale of the premises, after deducting the costs of the court below and the further costs of sale,
The decree will bp modified accordingly, and complainant will be entitled to the costs of this Court against defendant Becker, and the record remanded.
Dissenting Opinion
(dissenting). I cannot concur in the conclusion reached by the Chief Justice. I think the record sustains the conclusion which is reached in the majority opinion, — that the attempt on the part of the defendant Becker to assert the claim that the complainant is not entitled to foreclose his mortgage until the end of five years is unconscionable. Yet I do not think it is competent for the Court to impose on the defendant, as a penalty for setting up this unconscionable defense, the terms of the decree provided in the opinion. I am unable to find in the record a basis for any precise determination as to the amount of complainant’s damage by such defense, if it were permissible to punish the defendant for interposing the defense at all, except in the way of awarding costs for vexatious appeal.