24 Mich. 26 | Mich. | 1871
The leading facts in this case appear to be as follows: On the 8th of January, 1867, the complainant was indebted to defendant, Flint, in the sum of one thousand four hundred dollars, and in order to secure the payment thereof, gave to Flint his promissory note for the amount, payable to Flint or bearer, on the first day of May, 1867, with interest at ten per centum per annum, and at the same time executed and delivered to Flint a mortgage on real estate, providing for the payment of the same debt in the manner mentioned in the note.
On the 28th of June, 1867, Flint, formally and in writing, assigned the note and mortgage to his daughter, the defendant, Griffin, and which, as Flint and Mrs. Griffin claim, was merely in execution of an agreement to assign,
On the 10th of June, 1868, the mortgaged premises were sold under foreclosure proceedings at law, carried on in the name of the assignee, Mrs. Griffin, for the whole face of the mortgage including interest and costs, being one thousand five hundred and sixty-two dollars and sixty-eight cents. Mrs. Griffin became the purchaser, and the deed was made to her, and deposited with the register of deeds. No objection has been raised to the form of any of the proceedings to foreclose.
Some time after the mortgage was made, but before the sale (the precise time not being clearly ascertained by the proofs), a course of dealing commenced between Flint and Sandford, which was found by an accounting between them on the 26th of September, 1868, to have resulted, as they agreed, in making Flint a debtor to Sandford in the sum of two hundred and twenty-eight dollars, of which one hundred and fifty-three dollars had accrued before the assignment. When this accounting occurred, complainant had learned of the assignment to Mrs. Griffin, and it was then arranged that Flint should obtain his daughter’s sanction to the appropriation of the amount on the mortgage debt, and on Flint’s application she executed a paper and sent it to Sandford, by which she applied the two hundred and twenty-eight dollars on that debt. About this time, Sandford, as he claims, discovered an error in the accounting which showed that the sum of two hundred and twenty-eight dollars was too small by twenty dollars, and thereupon Flint
On the 24th of August, 1868, Flint purchased a billiard table of one Parish, for two hundred and forty dollars, and with one Leonard gave his note to Parish therefor, payable to the latter or bearer, in ninety days, with interest at ten per cent. It further appears that some time from fifteen to thirty days after the date of this note, it was acquired by Sandford. It is claimed by Sandford that during all these dealings after the assignment of the note and mortgage to Mrs. Griffin, Flint continually represented that the'assignment was a mere matter of convenience, and colorable only; tbat he still owned the securities and the rights under them, and exercised complete control; that the amounts complainant had against him arising from their dealing should apply on the mortgage demand; and further, that Flint assured him that if he would obtain the Parish note it should be applied on such demand. He also insists that he trusted to these representations, and was thereby brought do give Flint credit and trust him on account, and to buy the Parish note.
As the end of the year for redemption approached, the complainant called on the defendant Griffin at her house, in order to get her sanction to the application of these various demands on the mortgage debt, and on the 10th of June, 1868, the last day for redeeming pursuant to the statute, another interview occurred in relation to the same subject.
■ An understanding, however, was not reached on either occasion. The complainant insisted that all of the foregoing demands should be applied, and he offered her "one thou
This sum seems to have been ascertained as that which would remain after deducting the claims, by the register of deeds, Mr. Jewell, who made the computations. Mrs. Griffin consented to allow all the claims ’ except the Parish note, and that she positively refused to admit. Upon this refusal the complainant tendered the claims, including the Parish note and one thousand two hundred and twenty dollaj-s in cash, to satisfy the debt and redeem the estate, to the register of deeds, but that officer declined to accept them.
Thereupon, and on the sanie day the present bill was filed. The court below decreed that the assignment to Mrs* Griffin' was fraudulent and void as against complainant; declared that the claims before specified were applicable, and should be applied on the mortgage debt; that the money tendered with these claims was sufficient to pay the debt and redeem the premises, and ordered redemption accordingly.
An examination of the record makes it evident that the case was not one for redemption in the register’s office pursuant to the statute, since the circumstances required an accord by the parties. And it is equally manifest that an earnest effort was made to produce a redemption through such an accord, and that the only obstacle thereto was the Parish note.
The attempt did not fail by reason of any unwillingness of Mrs. Griffin to accept and-treat as payment any demands against Flint, but it fell through because she would not admit a particular one of several such demands. The parties having thus failed to come to an understanding, can this court intervene to prevent a loss or sacrifice by either ?
Belief against forfeitures is a very ancient head of equity,
■ It; is’quite true that the bill, in not entirely congruous, and that it is not neatly shaped as one - for redemption merely; but I think it contains, after all, the substance of a- bill of that kind. It seems to. have been - considered in the court below as possessing that character, and there is no reason to believe that defendants have been surprised or misled. The parties seem to have gone fully into the merits ■as upon a bill to redeem, and the complainant ought not now to be turned round ■ upon matters of form.- An -offer to redeem - is not an indispensable requisite, and its omission Will not necessarily disarm the court or undermine the ■remedy. ’At most it will, in general, affect the question of ■costs only, and these the court -will be inclined to inflict where it appears likely that an offer and readiness to redeem upon grounds found to - be reasonable, would have been followed- by' the submission of defendant.
Pursuing the 'view of the case so far taken, it is next tó be seen whether Mrs; Griffin, in executing-the power of Sale,- by mistake -or otherwise, not only sold for more than was due, but'for an amount so much larger that the law will notice the excess.
It appears, from the evidence of complainant and defendant Flint, that the latter was indebted to the former on account, in the' sum of one hundred and fifty-three dollars, at the' time of the' assignment of the mortgage,- and this is not denied by Mrs. Griffin. Flint further testifies that the reason why it was not indorsed on the mortgage before assignment was that it was uot made out; and the evidence 'conduces to show, and I think establishes, -that it was understood between Flint and complainant, as this indebtedness arose, that it should be in payment of the mortgage debt so far' as it would go. -Neither Mrs. Griffin nor Flint
She subsequently agreed that this one hundred and fifty-three dollars, with another sum which raised it to two hundred and twenty-eight dollars, should be taken as payment, and she afterwards expressly told Sandford, as she swears, that this sum of two hundred and twenty-eight dollars should be allowed and deducted. She also testified that after the sale she knew from information that a sum had been paid which had not been indorsed and taken out, but she does not intimate that she had no notice of such payment when the mortgage was assigned. These facts, in connection wyifch her readiness to allow this demand, the relations of trust and confidence between her and her father, and the manner in which they seem to have dealt with each other in this and other matters induced the opinion that she was informed, at the time of the assignment, of the condition of things between Sandford and her father, and of the circumstance that this account was, in substance, a payment on the mortgage. Entertaining this view of the facts, the consequence follows that Mrs. Griffin foreclosed for the whole face of the mortgage, by mistake or otherwise, when to her knowledge, acquired before, or at, the assignment there had been paid at least one hundred and fifty-three dollars. The complainant, then, had the right to redeem for a sum considerably less than the register was at liberty to accept, and a regular redemption at law was made impracticable except upon payment of more than was equitably due. Nothing remained but a redemption by negotiation or in equity. The negotiation was attempted and failed. The ground of equitable relief remained. The foreclosure
TJpon this subject there is no room for discussion, except in regard to the note for two hundred and forty dollars. The other demands were admitted to be justly applicable. To this extent, the parties in substance adjudicated for themselves, and no reason is perceived for any wide departure from their decision so far as they agreed. The Parish note of two hundred and forty dollars was the only subject of difference, and the question is, whether the complainant-has made out a case for the application of that demand. This note was made more than two months after the foreclosure sale, and did not fall due until more than five months after such sale, and about a year and a half after the assignment to Mrs. Griffin. The evidence does not satisfactorily show that complainant purchased it upon any prior-understanding with Flint that if purchased it should apply,, and no consideration is shown for any agreement by Flint that it should be applied on the mortgage debt.
On the other hand there is some evidence that it was not considered by Sandford as obtained to be so used, or as devoted by any agreement or arrangement to such a purpose, or as appropriated to the mortgage debt; for it distinctly .appears that he at one time actually transferred it as collateral security upon another debt, and that on such transfer it passed into the hands of Mr. Foster of Grand Eapids.
There are also some signs in the record that the billiard table for which this note was given was afterwards taken, upon a mortgage which accompanied the note, and was; made to cancel something of the debt. There is no ground for claiming that this note in the hands of Sandford afforded, an equitable set-off against the mortgage debt.
Upon the whole case I conclude that the decree below is wrong and should be reversed; but that complainant is entitled to redeem on paying in money, in a reasonable time to be specified in the decree, the balance of principal and interest remaining upon the mortgage exclusive of the costs of foreclosure, and deducting the demands held by complainant and hereinbefore specified, excepting the Parish note for two hundred and forty dollars; that in applying the demands, the claim of two hundred and twenty-eight dollars should be taken as paid on the mortgage on the 26th of September, 1868; the twenty-dollar note on the 2d of October, 1868; the account for goods of sixty-three dollars and eighty-four cents on May 1, 1869; and that the interest on the mortgage should be calculated as though said several amounts had been paid in money and indorsed at those times respectively. It is presumed that the proper balance can be readily ascertained and inserted in the decree. Of course the complainant will be at liberty to withdraw the deposit made with the register if that has not been done already. Upon payment of the money, the defendant Griffin, will be entitled to the vouchers representing the demands allowed as payments, and in case the money is not paid at the time, the bill should stand dismissed. In any event the complainant should be required to pay the costs of both courts.