74 Mich. 679 | Mich. | 1889
On April 2, 1883, George W. Mitchell and wife, Sarah Jane Mitchell, two of the above defendants, made and executed an indenture of mortgage to George W. Jenks, administrator, etc., covering the E. % of the N. E. i of section 22, township 16 N., of range lo E., Huron county, Mich. This mortgage was recorded in the
On the same day this mortgage was given, George W. Mitchell conveyed to his wife, Sarah Jane Mitchell, the north 45 acres of the premises covered by this mortgage, by deed of warranty containing the usual covenants of seisin, and that the premises were free from all incumbrances. The north 45 acres included the homestead of George W. Mitchell and wife; the dwelling-house and appurtenances where they resided being situate thereon.
On September 16, 1886, George W. Mitchell, being indebted to the J. I. Case Threshing Machine Company, complainant, in the sum of $700, gave his promissory notes for that amount to it; and to secure the payment of said notes he, with his wife, Sarah Jane Mitchell, made and executed a mortgage for said amount on the same date to said complainant, covering the south 35 acres of the premises described in the mortgage to George W. Jenks. This amount was due under said mortgage in installments: $150, October 1, 1887; $200, December 1, 1887; $150, October 1, 1888; $200, December 1, 1888.
The defendants all appeared and answered. The defendant Sarah Jane Mitchell in her answer alleged her home, stead interest in the north 45 acres, and her purchase from her husband; and prayed that the south 35 acres be first sold under the Davidson mortgage, before sale should be made of the 45 acres so owned by her. Defendant Davidson also answered, and prayed foreclosure of her mortgage upon the whole tract covered thereby, and for her costs in the proceedings.
On the hearing in the circuit, the court decreed that the south 35 acres be first sold under the Davidson mortgage, and that, if a sufficient sum should be realized at such sale, the north 45 acres should be released from the lien of that mortgage. The court found due on the complainant’s mortgage the sum of $317.80, and decreed that George W. Mitchell pay the same, with interest and costs, on or before February 17, 1889, and that in default thereof a sale be made of the 35 acres so covered by said mortgage. The court also found due on the Davidson mortgage the sum of $271.46, and ordered payment thereof by George W. Mitchell and Sarah Jane Mitchell, with
The deed was made and delivered to Sarah Jane Mitchell, by her- husband, and by her placed upon record, prior to the time of the execution and delivery of the complainant’s mortgage. At the time of the taking of this mortgage the complainant not only had notice by the record that the whole 80 acres was incumbered by the Davidson mortgage, but also that the title to the north 45 acres had been transferred by George W. Mitchell to his wife, Sarah Jane Mitchell, and that the legal title to that parcel was vested in her at the time of the giving of the mortgage to complainant. Where a part of the mortgaged premises has been aliened by the mortgagor subsequent to the mortgage, the rule in equity, on a foreclosure and sale, is to require that part of the premises in which the mortgagor has not .parted with his equity of redemption to be the first sold, and then, if necessary, that which has been aliened, and, where the latter is in possession of different vendees, in the inverse order of alienation. This rule rests upon the ground, chiefly, that where one who is bound to pay a mortgage confers upon others rights in any portion of the property, retaining other portions himself, it is unjust that they should be deprived of their rights, so long as he has property covered by the mortgage out of which the debt can be made.
The deed from Mitchell to his wife contains the usual covenants of warranty, and it is evident therefrom that it was the intention of the grantor in his deed to charge the part remaining in him first to the payment of this mortgage. These covenants of warranty become important in determining the intent of the mortgagor not to charge the mortgage on the property sold. If the bill had been filed to foreclose the Davidson mortgage, and the rights of complainant had not intervened, no one would deny the right of the defendant Sarah J. Mitchell, the grantee in the deed, to have the 35 acres remaining in her grantor first sold to satisfy the mortgage, before the portion purchased by her should be made liable to its payment, under the rule above stated. It is insisted, however, by counsel for complainant, that the defendant Sarah J. Mitchell, having signed the Davidson mortgage, and. taken a deed from her husband of the 45 acres, it was charged with its proportionate share of the lien, the same as if she had purchased the whole 80. This fact could not affect her right to have the south 35 acres remaining in her husband first sold. The mortgage was given to secure the payment of the debt of the husband, and she in its execution only barred her dower. She was not personally liable for the debt, and could not be held liable upon any covenant contained in the mortgage-Such a covenant would be a mere nullity, so far as her rights were concerned. The statute does not empower her to make contracts generally, but only in respect to her own property. Kitchell v. Mudgett, 37 Mich. 81.
Counsel for complainant further contend that, Sarah J.- Mitchell having signed both mortgages, her equities
In Kitchell v. Mudgelt, supra, a bill was filed to foreclose a mortgage signed by the defendant as wife of the mortgagor, on laud belonging to the husband; the defendant having a prior mortgage on the same premises. It was claimed that the wife, in uniting in the mortgage to complainant, transferred her own mortgage interest, and subjected it to the lien of the mortgage she signed. It was held that her act had no such effect, and her mortgage was given priority of lien. Sarah Jane Mitchell's rights in the 45 acres are in no manner affected by the giving of this mortgage to the complainant, and no equities arise in favor of complainant to have this parcel first
Some question is raised by counsel for complainant relative to costs allowed by the court below. Margaret L. Davidson was proceeding to a foreclosure and sale by advertisement of the premises under her mortgage. This she had a right to do, under the power of sale contained in the mortgage. Complainant by injunction restrained the sale, and made Mrs. Davidson a party defendant to its bill, the effect of which was that she lost her costs and expenses incurred in the advertising of her foreclosure. These costs the court very properly allowed her.
Mrs. Mitchell was also allowed $25 as costs by the court below. Wo think this was an amount which the defendant might reasonably recover. By her answer in the nature of a cross-bill she was asking affirmative relief; that is, that the 35 acres be first sold under the Davidson mortgage. This relief the court granted, and gave the defendant costs within the rule.
Counsel for complainant asks, on the hearing here, that it be permitted to redeem from the Davidson mortgage. This will be granted. The decree of the court below will be so modified that complainant may pay to Margaret L. Davidson the amount of the mortgage as fixed by the court below, together with interest thereon from the date of such decree at the rate drawn by said mortgage, and