Sage v. Riggs

12 Mich. 313 | Mich. | 1864

Manning J.:

The 'error complained of in this decree is the non-allowance of $100 attorney’s fee for foreclosing the mortgage, provided for in the power of sale. It is insisted complainant is entitled to the $100, whether the foreclosure is in chancery, or at law by advertisement and sale under the power. It is not in a separate clause of the mortgage, standing by itself and providing a fee for foreclosing the mortgage generally, but in the power of sale of which it is a part. The language of the power is, “rendering the surplus moneys, if any there be, to the parties of the first part, their heirs, executors or administrators, after deducting the costs and charges .of such vendue and sale aforesaid, and also one hundred dollars as an attorney fee, should any proceedings be taken to foreclose this indenture.” The meaning of the- words, “ should any proceedings be taken to foreclose this indenture/’ relied on by appellant, is -easier asked than answered — nor is it necessary to decide. For they must be understood and construed with reference to the subject matter- of the power; that is, a fore, closure by advertisement and sale of the mortgaged premises,' and not a foreclosure in equity, of which no mention is made in the power or in any part of the mortgage. I lay no stress on the word attorney, as it is not'necessary to employ one to execute the power. The decree must be affirmed, with costs.

The other Justices concurred.