169 Mich. 193 | Mich. | 1912
This bill of complaint is filed to restrain foreclosure by advertisement of a mortgage given by complainant to defendant’s father, and to obtain an accounting as to the amount unpaid thereon. Complainant alleges that certain payments made on said mortgage
It was found by the trial court that the defendant had figured an excessive rate of interest in computing the amount due, and thereby the sum set forth and claimed in his published notice of foreclosure was excessive. The proceeding to foreclose by advertisement was begun on March 20, 1909, and the-court found there was then due $1,542.65, and that the complainant had tendered in payment of the mortgage the sum of $1,388.05, which was not a sufficient tender. The court also found that an alleged payment by complainant to defendant’s father on May 13,1903, of $125, was not proven by a preponderance of the evidence.
By their briefs, counsel for the contending parties narrow the issue before us to the one question of whether complainant paid defendant’s testate this $125 in part payment of the mortgage. The mortgage in question covered complainant’s farm on which he resided, consisting of 120 acres located in Allegan county, about five miles from Wayland, where Ephraim W. Ryno, now deceased, resided. This mortgage was given April 13, 1899, was for $1,200, ran for three years, interest at 6 per-cent. It was a renewal, at a lower rate of interest, of a former
“ I don’t recollect anything more than that he didn’t remember that he had ever paid the $125. * * * I didn’t listen to any of the conversation because I wasn’t interested in it. I was only in the room from time to time.”
The testimony was taken in open court. Incompetent as well as competent testimony was introduced and spread upon the record, it being a chancery case, and the court not at liberty to pass upon the evidence as it was given.
Complainant testified in detail as to all the facts and circumstances touching the payment of this $125. Much of this was inadmissible, being equally within the knowledge of the deceased.' That which is competent was so intermingled with the incompetent as to confuse and give the impression that all should be rejected. A careful examination, however, of the printed record, shows that there is, running through such record, much competent testimony bearing upon the question of this payment. The evidence shows that this contention was consistently urged before the death of the party to whom it is claimed payment was made. Complainant insisted upon the payment strenuously to the elder Ryno as well as others. He testifies that in the fall of 1908, when the elder Ryno was taken sick, he was requested by defendant to come and settle up this mortgage; that he had a talk with defendant in regard to it about the 1st of November, 1908, in which he claimed this payment of $125 was made, stating to him the time and circumstances; that, with nothing but his memory to go by, he informed defendant of having paid the money to the bank, which issued a certificate of deposit in his father’s name on May 13, 1903; that in a dis
“He came into the bank, into the back room where I was at work, and asked me if I remembered his getting a certificate of deposit for Mr. Éyno in May, 1903. I think he gave me the exact date. I think it was May 13th, as I remember it, and I says, ‘No; I don’t remember anything about it at all.’ He said the amount was $125. I told him I would look it up and let him know; and I asked Duell, and we hunted up the old Eegister of 1903, which had been put away, and we found there was a certificate issued to E. N. Eyno for $125 on May 13, 1903. I have it with me.”
This certificate was stamped, “Paid May 18, 1903,” just five days later. Complainant testifies that this money was obtained from the sale of some cattle. This is verified by the testimony of his wife, who gives the circumstances, stating the approximate date and amount for which the cattle were sold.
We think that complainant’s talk with Pickett relative to the certificate of deposit, giving him the date and amount, is competent; that the testimony of Pickett touching the circumstances of how and where he found it is competent; that the testimony of complainant as toconversations.with defendant is competent, as also his conversation with defendant’s brother; that the testimony of Lena Fish of complainant’s talk with the elder Eyno and defendant about the claim of payment is competent; that the testimony of complainant’s wife as to the sale of the stock to raise money to make the payment on the mortgage is competent. None of these facts were equally within the knowledge of the deceased. This certificate
It is further contended by complainant that, crediting the $125 on the mortgage as of the date it was paid, his alleged tender of March 20,1909, was sufficient in amount to then pay the mortgage in full, therefore no subsequent interest should be allowed and the decree should be for only $1,388.05, with costs of both courts in his favor. With this contention we cannot agree. Complainant had negotiated with a bank to loan him money to pay the mortgage; he did not have it himself. Accompanied by the manager of the bank, he offered to pay this amount to the defendant in settlement of the mortgage. It was not accepted and his negotiations for a loan from the bank were not consummated. He never had the money, so far
Defendant, in his answer in the nature of a cross-bill, asks for affirmative relief by decree of foreclosure for the amount found due on the mortgage. To this he is entitled. The testimony shows that defendant, knowing there was a controversy over the amount due on the mortgage, instead of taking time to investigate, and, in case of settlement not being reached, foreclosing in chancery, where the matter could be legally investigated and an equitable accounting had, proceeded at once to foreclose by advertisement for the full amount claimed to be due, including not only the items in controversy but also interest on interest after the mortgage fell due. Such being the situation, he is not considered entitled to recover any costs heretofore incurred.
The decree of the court below will be modified in accordance with this opinion, and otherwise affirmed, with costs óf this court only in favor of complainant.