47 Mich. 385 | Mich. | 1882
The complainant holding a mortgage given by defendant Bagley upon certain real estate under which
In November, 1877, defendant Bagley being indebted to •defendant Hollywood, gave him a subsequent mortgage upon the premises and on the 10th of October, 1878, Bagley conveyed the mortgaged premises to Hollywood, and the latter, on the 10th day of February, 1880, redeemed the premises from the foreclosure sale of February 14, 1879, made by Walton, by paying to the register of deeds of the proper county the amount for which the sale was made with interest, but although knowing of the sums paid by complainant after the sale, for insurance and taxes, declined to pay •the same. Whereupon complainant files his bill to foreclose 'the mortgage given him by Bagley for the purpose of •collecting the amount of taxes and insurance as above. '
Where provisions are inserted in a mortgage, authorizing the mortgagee to pay taxes and insurance in case the mortgagor neglects, and that the money thus paid shall be a lien upon the premises, the primary object is to protect the interest of the mortgagee" until the full payment or collection of his claim. This can be fully accomplished only by giving the mortgagee the right after a sale has been made •and pending redemption to pay the taxes or insure the property. Where this is done before foreclosure proceedings are commenced the amount may be included, even although ■the insurance effected may include the full period allowed for redemption. And if he may so insure the day before "he commences proceedings to foreclose, why may he not afterwards, and be protected by his mortgage? This at first view would seem to be equitable and plausible.
If the taxes and insurance premium paid are to be treated as a subsequent instalment falling due, then the mortgage-may be made to operate as a perpetual encumbrance by the-mortgagee paying taxes and insuring the property pending foreclosure proceedings, and after redemption proceeding again to foreclose therefor, and so on ad injmiimm, ending only by the mortgagor’s paying the demand or failing to-redeem. The mortgage given in this case after a foreclosure and sale, regular in form, was no longer operative,
In my opinion the power of sale contained in the complainant’s mortgage was by the foreclosure proceedings exhausted, and the complainant cannot have the relief sought in the present case, and the decree below should be reversed and the bill dismissed with costs.
See Connecticut Hut. L. Ins. Co. v. Bulte 45 Mich. 113.