Lamb v. Jeffrey
3 N.W. 204
Mich.
1879
Check Treatment
Cooley, J.

Complainant filed his bill of complaint *721to enforce his right to redeem a mortgage upon premises of which he claims to be' a subsequent incumbrancer. The defendant Sarah Jeffrey held the prior mortgage, and he avers that he tendered her the full amount thereof and demanded an assignment, but that she, instead of acceding to the demand, proceeded to foreclose at law. An answer was filed to this bill which contained a demurrer clause, and issue was joined by replication. Complainant then noticed the case for the taking of proofs in open court, but on its being called on, the judge heard an argument as upon demurrer, and dismissed the bill.

The judge erred in this dismissal. Complainant was entitled to put in his proofs, and have the case come up on the facts. Hewlett v. Shaw, 9 Mich., 346. And in any case where a demurrer to the bill is sustained, the case ought not to be dismissed unless the defects are such as cannot be cured by amendment, or unless the complainant declines to amend; neither of which appears in this case.

There is no doubt of the right of a second, mortgagee to redeem from the prior mortgage, and to have the benefit of an assignment. Sager v. Tupper, 35 Mich., 134. It is objected to the bill in this case that it does not keep good the tender, and does not offer now to pay the amount; but we think as in the case of specific performance, this could only raise a question of costs. The complainant avers, however, that he not only made a tender when he demanded an assignment, but that he again made an offer to p'ay when proceedings to foreclose were begun; and if he makes out his case, he could not justly be chargeable with costs.

The decree must be reversed, and the record remanded for further proceedings. If in view of this opinion either party desires to amend, the amendments should be allowed.

The other Justices concurred.