Lucking v. Wesson, 25 Mich. 443

Lucking v. Wesson

25 Mich. 443 | Mich. | 1872

Cooley, J.

The doctrine that the holder of a mortgage upon chattels becomes absolute owner of the property by breach of condition, is not admitted in this state. The mortgagee has a lien which he may foreclose in the several modes permitted by law, and from which the mortgagor may redeem.—Van Brunt v. Wakelee, 11 Mich., 177. The true relation of the parties is that of debtor on the one side, and .creditor secured by lien on property upon the other.

This being so, the holder of a subsequent lien must have the same right to protect his interest in the property that he would have had if the prior lien had been of any other nature. And to this end, he may pay off the prior encumbrance as the only mode in which he can prevent his own from being cut off by the other being enforced.

If, however, he were to lose the money paid for that purpose, this right would be of little value in some cases, and in others, of none at all. Obviously the privilege of redeeming from a claim equal to, or greater than, his own, would, under such circumstances, be a mere mockery, while if, on redemption, he were to be entitled to be subrogated to the rights of the person from whom he redeemed, he would always be enabled to protect himself fully, if the property is sufficient for the purpose.

No reason at all satisfactory to our minds has been suggested in answer to the claim to subrogation. The mort*446gagor certainly cannot object, as it does not in any way affect his legal rights. He is not liable otherwise, or to • any greater extent, after the first lien is transferred, than he was before. Nor can the mortgagee object if he is fully paid, for he has no right to any thing beyond that. It may be said that, while he is obliged to receive payment, he is not obliged to sell his demand; but the law determines what shall be the effect of payment, when one makes it to protect a subsequent interest, and the party cannot prevent the legal incidents attaching, by refusing his assent. It is not strictly a sale, but there has been redemption under circumstances which the law says shall entitle the party redeeming to subrogation. And he demands and receives an assignment by way of evidencing this right.

It is objected, that the bill shows the payment to have been first made, and an assignment demanded on a subsequent occasion. We do not think this the fair construction of the bill. It is consistent with its allegations, that the assignment was demanded immediately after payment was made, and we need not therefore consider what would have been the effect of a neglect to make demand at once.

It is also objected, that complainants were premature in demanding a right to redeem before they had sold on execution ; but we think they had the right so soon as they had acquired a lien which might be lost or jeoparded by the enforcement of the mortgage.

It is also insisted, that the bill shows no jurisdiction in equity, because it does not aver the property to be of more than a hundred dollars in value. But the test is, the amount of the lien demanded; which is largely in excess •of that sum.

We think the decree was correct, and that it should be affirmed, with costs.

The other Justices concurred.