181 Mich. 614 | Mich. | 1914
On the 26th day of January, 1911, the defendant Julia Chase executed a real estate mortgage on certain lots in the village of Berrien Springs to secure the repayment of $8,170, borrowed by her from the complainant, the obligation to become due two years after date, with interest at 6 per cent., and was made payable at 5009 Champlain avenue, Chicago, Ill. The mortgaged premises were conveyed by Julia Chase to Nellie K. Berkey on July 25, 1911, who, together with her husband, executed, on the same day, a second mortgage on the premises to the defendant. Samuel Brown, Jr. On the following day, July 26, 1911, Nellie K. Berkey and her husband conveyed the premises by warranty deed to the defendant Robert M. McNair. No interest having been paid, on the 10th day of April, 1912, the complainant filed a suit to foreclose this mortgage; but Nellie K. Berkey
The sole defense of the appealing defendant is that this court should decree a cancellation of the mortgage lien, because, first, she appeared at the time and place specified in the note and mortgage for their payment with money to pay the same, and with the intention of paying the note and mortgage, and was prevented from making such payment by the absence of complainant; second, because of an actual tender to the complainant, claimed to have been made at Berrien Springs on January 28, 1913, and to his attorney, at Chicago, a few days later. With reference to these claims, Mrs. Berkey testified that on January 26, 1913, which fell on a Sunday, she went to 5009 Champlain avenue, Chicago, Ill., the place specified in the note and mortgage for payment, with $3,625 to pay the note and mortgage; that she found no one at this address except the janitor, who informed her that the complainant had not been there that month; that thereupon she asked the janitor if there was any one there to receive the money due on the mortgage, which fell due that day, and the janitor replied that he had heard nothing regarding it, and, if she would return
It seems to be a well-established doctrine in this State that, even if a'proper tender is made, it will not discharge a mortgage lien, unless the tender is refused in bad faith. In Waldron v. Murphy, 40 Mich. 668, 671, it was said:
“It has been held in this State that a wilful and absolute refusal to accept a lawful tender discharges a lien. But there is no equity in attempting to avoid both lien and debt, and the security should not be discharged by any action in which the conduct of the creditor is not unjustifiable. If the refusal of a tender is not unreasonable or absolute, we do not think a mortgage is cut off by it. For the cases heretofore decided bearing on this question, see Caruthers v. Humphrey, 12 Mich. 270; Van Husan v. Kanouse, 13 Mich. 303; Eslow v. Mitchell, 26 Mich. 500; Potts v. Plaisted, 30 Mich. 149; Flanders v. Chamberlain, 24 Mich. 305; Cowles v. Marble, 37 Mich. 158; Collar v. Harrison, 28 Mich. 518; [Id.] 30 Mich. 66; Barnard v. Harrison, 30 Mich. 8; Seager v. Tupper, 35 Mich. 134; Fry v. Russell, 35 Mich. 229.”
See, also, Proctor v. Robinson, 35 Mich. 284; Canfield v. Conkling, 41 Mich. 371 (2 N. W. 191); Engle v. Hall, 45 Mich. 57, 58 (7 N. W. 239); Post v. Springsted, 49 Mich. 90 (13 N. W. 370); Renard v. Clink, 91 Mich. 1 (51 N. W. 692, 30 Am. St. Rep. 458); Bolton v. Jewett, 117 Mich. 105 (75 N. W. 293).
In Engle v. Hall, supra, Mr. Justice COOLEY, speaking for the court, said:
“When the discharge of a mortgage is demanded on the ground of a tender, the evidence in support of the tender ought to be very clear and satisfactory, and ought to place the defendant distinctly in the wrong.”
A part of the proofs in this case were introduced on September 16, 1913. At the close of these proofs, the case was apparently submitted without argument. Solicitors for complainant, who reside at Benton Harbor, gave notice on October 10, 1913, by mail, to the solicitor for defendant Nellie K. Berkey, who resides at Berrien Springs, that further testimony would be taken in the case at St. Joseph on October 14, 1913, at 7:30 o’clock at night. At the time appointed the testimony of Mr. Kolb was taken. The solicitor for defendant appeared but refused to-participate in the proceeding, and filed a written protest, and did not cross-examine the witness. It is urged that a motion to reopen the case should have been made and heard before further testimony and argument was allowed, and that the notice given did not give the solicitor a reasonable time in which to appear. When a case has been finally submitted, and further proof or argument is desired, it would seem to be the better practice to make a motion so to do and properly notice it for hearing, as was done in J. L. Hudson Co. v. Hat Co., 174 Mich. 109 (140 N. W. 507). The matter of taking proofs in a chancery case must, however, be left largely to the discretion of the chancellor, and in
The decree is affirmed, with costs to the complainant.