33 Mich. 284 | Mich. | 1876
July 18, 1870, Sliermer executed and delivered to Merrill and McCourtie three promissory notes, respectively falling due in one, two and three years from the date thereof, the one falling due in three years being for the sum of two hundred dollars with ten per cent, interest payable annually. He at the same time, in order to secure payment of these notes, executed a mortgage to Merrill and McCourtie. After the two first notes, but before the third became due, Merrill and McCourtie foreclosed this mortgage-by advertisement. The notice of sale contained this clause:: “This foreclosure and sale is made subject to another note, secured by said mortgage, for the sum of two hundred dollars, and interest thereon at ten per cent, from January 18, 1870.” The mortgagees became the purchasers at saicl sale, having bid the amount' due on the two first notes and costs of foreclosure. The premises were not redeemed.. The purchasers received a deed, and had the same recorded April 26, 1873, and afterwards brought an action against Shermer to recover the amount of this third note, and judgment was rendered in their favor for the amount thereof.. Shermer removes the case to this court on writ of error, and insists that the mortgagees having purchased the land subject to this note, and having afterwards obtained a deed therefor, they cannot thereafter maintain an .action upon the note.
The debt for which the note- in question was given was a lien upon the land, which- was sold subject to its payment-.. The intention was clear, and such must have been the understanding, that in case a third person became the purchaser, and the mortgagor should not redeem, the mortgagee, when this note became due, if it was not paid, might proceed to-foreclose and again sell this land in order to obtain pay
The mortgagees having become the purchasers stand in no better position than a third party would under like circumstances. If a third party purchasing the land at such a sale would take it -subject to the payment of future installments, not then due, the mortgagees, in case they pur
“A court of law will endeavor to prevent circuity and multiplicity of suits, where the circumstances of the litigant parties are such that, on changing their relative positions of plaintiff and defendant, the recovery by each would be equal in amount.” — Broom’s Maxims, 337.
The judgment must bo reversed, with costs, and a new trial granted.