3 Mich. 295 | Mich. | 1854
Assuming for the present that the proof offered by the defendant in the County Court was properly received under the pleadings, the question is presented whether the facts proved were such as to establish a legal defence to the action.
The boobs agree in this, that a chattel mortgage is a conditional transfer or conveyance.of the property itself, and if the condition is not duly performed, the whole title rests absolutely at law in the mortgage. (2 Story Eq. Juris. 378 § 1030, Tannahill vs. Tuttle, ante 104.)
The defendant resisted this action upon two grounds. First, that the forfeiture of the condition of the mortgage was waived. by the mortgagee by his attachment suit upon the note which the mortgage was given to secure, and secondly, that the mortgagee’s title to the property was divested by a tender to him by the mortgagor of the amount due on the note.
Then was the right of the plaintiff to take possession of the property, divested or waived by the previous attachment.
The mortgage was wholly distinct from and collateral to the note, and the creditor had distinct remedies on each security. After judgment in the attachment suit, the note undoubtedly merged in the judgment, and no further proceedings could be had directly upon the note, but it did not destroy the debt, and therefore did not defeat or release the mortgage; for the condition of the mortgage is that the mortgagor shall pay the debt; and until the debt is actually satisfied, the mortgage remains in full force. As well might it be said that a renewal of a note secured by mortgage would have the effect'to discharge the mortgage; but this is not its effect. (Pomeroy vs. Rice, 16 Pick.; Watkins vs. Hill, 8 Ib. 522; Dunham vs. Dey, 15 J. R. 554.) Neither does the giving up a note, and accepting a recognizance in lieu thereof for the sum due, discharge a mortgage given
In the case of Butler & Vosburg vs. Miller, 1 Denio, 107, a chattel mortgage was given to secure a number of notes. Subsequently and after the condition was broken, the mortgagor gave a bond and warrant of attorney for the same amount, and judgment was rendered on the bond. Another judgment had been recovered in favor of a third party and levied on the mortgaged property, the judgment was rendered in favor of the mortgagee on his bond and warrant, the same day he received it, and he placed his execution in the hands of the same officer who had previously levied in behalf of the third party. The goods were sold on the first execution and did not satisfy it. The mortgagee then undertook to resort to his-mortgage for the payment of his debt. Judge Jewett, who-gave the opinion of the Court, remarks : “ In general, the
In the case of Chapin & Wilson vs. Clough, 6 Verm. 123, a note was given by the defendant to the plaintiff for a
It is obviously true, that if the mortgagee recovers judgment on a note secured by mortgage, and takes the mortgaged property in execution, he waives his mortgage, and the lien thereby created. (11 Metc. 226-31; 8 N. H. 291; 5 Pick. 178; Sweet vs. Brown, 29 Maine R. 31.) But in the case of pledge as well as a mortgage, the creditor may, at common law, proceed against the debtor in the same manner as if there was no pledge or mortgage, and is not bound to restore the pledge until the debt is paid. (Yelverton, 178, note 1; 7 Mass. 63; Ratcliff vs. Dows, 4 Mass. 247; 10 J. R. 482; 3 D. & E. 342; 1 Sch. & L., Ib. 176; 2 Starbuc's Cases, 72; 2 Strange, 919; 2 Gall. 159.) And we have found no cases in the reports of this country that have held otherwise, except the cases in 8 Mass. and 1 Denio, cited above. The Court say in the case cited from 6 Verm., that, the case in 8 Mass. is contrary to the common law, and has not been followed in New England, and the case in first Denio we have seen was reversed in the Court of Appeals. In 10 J. R. 482, the Court say a creditor who takes a mortgage has three remedies, either of which he is at lib
That this is the common law in relation to mortgages ¡upon real estate'.is manifest from the fact that our Legislature has provided by express enactment that a mortgagee shall not proceed to foreclose his mortgage where proceedings at law have been commenced to collect the debt, and before 'they are terminated.
We think we have established $the position, that the commencement of the suit in attachment did not release or extinguish the mortgage. Indeed, lit would seem that the idea-that the mortgage would be released by the commencement of the suit upon the note, is predicated upon the supposition that the mortgagor has an equity of redemption at common law, but no right remains in the mortgagor of personal property precisely corresponding with an equity of redemption of meal estate, it having been the prevailing doctrine, that the mortgagee of chattels is the legal-owner, and that by a breach <of condition the mortgagor’s title is absolutely forfeited. If •the doctrine can be maintained that a suit upon a note releases the mortgage given to secure it, two securities can be mo better than one, for then by an attempt to enforce the •one, the other must be extinguished.
The case of Hoyt vs. Hudson, 12 J. R. 207, is cited to show '-that a levy upon ¡property is a satisfaction of a debt, and it
But even on final process, a levy on real estate is not a prima facia satisfaction of the debt. (2 Doug. Mich. 150.)
In the case at bar, the personal property attached was appraised-at five dollars, and the rest of the property attached was real estate, of which the attaching officer did not retain possession, and if he did, it' could not. bar this suit to recover the possession of the mortgaged property. The title, to the land attached, may prove not to be in the defendant, and when that remedy is pursued to its utmost extent, it may-not produce a dollar- to apply on the judgment, or debt. It; appears, in this case, that the 'judgment was-recovered in the attachment suit, .before, this case wa's finally, tried; but obtaining judgment in any cause is only one, step, and often a remote one towards obtaining satisfaction. In the mean time, the property mortgaged belonged to the plaintiff absolutely, unless by the. commencement of the attachment suit, the plaintiff waived the forfeiture of the condition of the mort gage, of which we shall treat presently.
If' we give to the. doctrine we have been considering it© legitimate effect, nothing short of actual satisfaction upon some one of the remedies resorted to, can cancel the mortgage. Hardhearted creditors may attempt-to. oppress their.. debtors, by multiplying suits to recover one demand;' but it' has been seen .that a Court of Chancery will interfere- to prevent oppression, and whether multiplied proceedings may or may, not operate oppressively, cannot vary the right of the plaintiff in this suit, for as was' said b.y Judge Cowen, in 24
It is also urged by the defendant, that he had the right to the benefit of a tender, until the mortgagee had taken and offered the property for sale, under the power contained in the mortgage, but it is not so. In the case of. Burdick vs. McVanner, (2 Denio, 170,) which was a case of trover for property taken by a mortgagee, it was urged that, the mortgaged property was subject to an equity of redemption before sale, under the power of sale in the mortgage, but the Court held that' while the power of sale authorized the mortgagee to sell the mortgaged property, and thus .satisfy the debt,- it did’ not requi/re him to do so, or forfeit his-right under the mortgage. The Court say “ such a power in a chattel mortgage has never been supposed to.extend the timé.of payment specified in the mortgage, ñor tinder any circumstances to reinvest the mortgagor with title to the property.”. And in the case of Ferguson vs. Thomas, (21 Maine R. 501,) the Court held that the power of sale in the mortgage was a mere stipulation for the" benefit of the mortgagee, and could not impair his right to immediate possession.
It is also urged that the tender by Mr. Walker to "the plaintiff of the amount recovered in the attachment suit immediately after the judgment was rendered, should have the effect to cancel the mortgage, but'the amount tendered was the amount of the damages recovered, and did -not cover the costs which were some sixteen; dollars. Afterwards,- Mr. Walker paid to the Clerk of the' Court the costs, and then tendered hr the plaintiff the amount of, the damage together with the Clerk’s receipt for the costs: ’ This was not a good tender, the costs belonged to the plaintiff, he was responsible . for them,’ and was presuméd to have paid them, and it does. not appear that Walker acted by defendant’s authority, or that he was his attorney in that stiff.
In the case of Charter vs. Stevens, 3 Denio, 35, the mortgagor brought trover for a horse which had been taken on a chattel mortgage. It appeared that the mortgagee took the mortgaged property and advertised it ’for sale, and sold it under the power of sale contained in the mortgage; the property was sold separately, and a sale of a part of the property produced a sum sufficient to satisfy the debt. He, however, went on and sold the whole, and it was for the property sold after the debt was satisfied, that the action was brought. The Court, while they held that the defendant’s title became absolute on failure of the mortgagor to pay, decided that the mortgagor did not lose all his title because he had an equity which a Court of Equity would enforce, and they held that the sale of the property was equivalent to an absolute payment. This decision is put upon the ground that the mortgagee elected to act upon the power of sale, and in so doing, he, by a reception of the money, waived the forfeiture. The Court admit that the mortgagee might have taken the property after condition broken, and was not bound to sell it, but might have retained it as his own, leaving the mortgagor to enforce his equity of redemption as he best could, but as the mortgagor chose not to rest upon that right, but elected to
The mortgage not being released- by the suit on the note, was the forfeiture of the condition of the mortgage waived by that suit ?
- In the case of Cutts vs. the York Manufacturing Company, 11 Maine Rep. 326, it was decided that by the commencement of a suit upon the note secured by a chattel mortgage, the forfeiture of the condition of the mortgage-was waived. This point was distinctly made and decided by the Court., We have not been able to find any other decision to the same effect, neither have we seen any case besides-' in which the point was made. This appears to us to be a very reasonable doctrine. The mortgagee, by his suit, seeks to-collect the money due to himself from the mortgagor. He-, indicates by this-act of bringing suit on the note, that he does-not hold the property in satisfaction of his debt. It seems-just to allow the mortgagor to .pay him, and thereby discharge-the mortgage, instead of permitting the mortgagee to collect-' the debt by a suit on the note, and at the same time retain the property bound in this mortgage, and turn the mortgagor over to his uncertain remedy in equity. By holding thesxxit on the note to be waiver of the forfeiture of the condition of the mortgage, all the securities as well as the remedies there
On the argument of this cause before the Court, it seemed to be conceded that Kellogg was authorized to demand the mortgaged property of defendant, and acted for him in taking possession of it. We, however, have not been able to find any evidence in the record that he was so authorized, or that plaintiff ever knew that he did act for him, but as the counsel of the plaintiff conceded it, we shall act. upon the admission. It is in evidence that Kellogg took possession of a portion of the mortgaged property which was found in Ann Arbor, and said he did so by the direction and authority of the plaintiff. This is his own statement. At the same time he said he had not the mortgage or any paper. The defendant and his counsel appear to have recognized his agency, and proceeded to tender to him the sum of fifty dollars, which he declined to receive, because he did not know the amount due upon the mortgage, and he remarked that the plaintiff would be down soon, but defendant and his counsel chose to make the offer of the money to him, and then directed the son of defendant and some other person to-drive the property away, and in doing so, they took Kellogg with them as far as the jail, where he got out of the wagon. It would seem from the proofj that Jewett had previously, on the same day, demanded the same property of the defendant, and the defendant refused to deliver it up to 'him at that time; it is not shown that any offer of payment or tender was made by the defendant to the plaintiff To make a tender good, and binding upon the plaintiff, it must appear that the money was tendered either to the plaintiff, or to some one authorized to act for him, and not a mere ser-i vant. See Bae’s Ab. Tender, E.
The reason given by Kellogg for not receiving the money, was that he did not know the amount due to plaintiff, and his saying that plaintiff would be down soon, was equivalent
In arriving at this result, wo have not considered any of the objections to the proof adduced by defendant which-was made at the trial before the County Judge by the plaintiff We have assumed that the defendant’s proof was properly received, yet it does not make out a good defence to this action.
It is considered that the judgment of the Circuit Court of the County of Washtenaw be reversed, and it is ordered that the plaintiff in error recover the costs of this Court.