50 Mich. 343 | Mich. | 1883
Complainant in this case seeks to redeem from what is claimed to be an irregular statutory foreclosure of a mortgage. The case was submitted in the court below on demurrer to the bill, and redemption was decreed.
The mortgage, as the bill shows, was given July 12,1876, by Clark Cummings to Peter Lowe, upon lands worth three thousand dollars, and was conditioned for the payment of two hundred dollars, with ten per centum interest in one year from date. A year’s interest was paid when the mortgage fell due, but not the principal. December 6, 1877, Lowe assigned the mortgage to defendant, and July 5, 1878, defendant assigned to Sylvester B. Smith. This last assignment, however, was not pursuant to a sale, but Smith held the mortgage for defendant. August 10,1878, Smith began proceedings to foreclose the mortgage by advertisement under the power of sale contained therein, claiming that there was due at that date two hundred and twenty-one dollars. The mortgage contained a provision for the payment of an attorney’s fee of fifty dollars in ease any proceedings were taken to foreclose, and this sum was also claimed as part of the amount due. November 8, 1878,-sale was made pursuant to the notice, and the whole mortgaged premises were struck ofi to Smith for the sum of three hundred and two dollars. This sum included the fifty dollars attorney’s fee. Smith immediately quitclaimed to defendant. No redemption ivas made from this sale, and in the winter of 1879-80, the premises being unoccupied, defendant went into possession, claiming them as owner.
That defendant was not entitled to include the fifty dollars in the sum for which sale was made, is determined by cases which were referred to when the' former suit was decided. But a mortgage sale is not necessarily invalid because more is claimed than is in fact due; Klock v. Cronkhite 1 Hill 109 ; provided the claim is in good faith; Jencks v. Alexander 11 Paige 619; the excessive claim would be
The amount of the unlawful fee was not included in the sum due in this case by mere inadvertence or miscalculation, but was deliberately claimed. The sale was made for it, and defendant retained the amount as being his by right. But, as we held in the former case, he was not entitled to retain it, but should have paid the amount over to the officer for the mortgagor or his assigns. When thus retaining it, the only question in respect to it would be, what remedy the law would give against him because of its retention. The mortgagor’s assigns might perhaps have brought suit against him, or against the .officer, to recover the amount; but instead of doing so they proceeded on the assumption that the sale was void, and asserted their right to redeem. Defendant appears to have denied that any rights whatever existed against him in respect to this foreclosure, and while retaining the whole amount of the bid took possession of the land as being his by absolute title. When, however, he proceeded to foreclose on the second mortgage, and the assigns of the mortgagor asserted a right to redeem from the second sale, defendant seems to have made no objection to receiving the redemption moneys from them. But they could have no right whatever to make the
It is said, however, that the unpaid portion of the second mortgage is still a lien on this land, and the decree should have recognized that fact. But this does not appear. We cannot presume that in selling off a portion of the mortgaged premises for the satisfaction of installments, the sale will be made subject to other installments; the presumption, if any were to be indulged, would be the other way.
The decree will be affirmed with costs.