91 Mich. 198 | Mich. | 1892
The evidence in this case shows that David W. Boyes, in 1886, was the owner of a farm of
In July, 1886, the Muskegon, Grand Eapids & Indiana Eailroad Company acquired from Boyes a strip of land 100 feet wide across this farm for railroad purposes, and in the month of August, 1886, went into possession of said strip, and has ever since operated and run a railroad upon it, it being part of its line from Grand Eapids to Muskegon.
The sale under the Austin foreclosure took place March 13, 1889. The commissioner offered the premises for sale in two parcels, first putting up the whole farm excepting this 100-foot strip occupied by the railroad company. This was in the inverse order of alienation. Dudley O. Watson, as administrator of William G. Wat
The defense set forth in the answer was that William G. Watson actually bought the Austin mortgage, but, instead of taking an assignment in the usual way, requested that it be formally foreclosed in the name of Austin; that William G. Watson at the time the Austin foreclosure was commenced, and Dudley O. Watson at the time of the sale under such foreclosure, knew of the rights of the railroad companies in the premises, and that equity demanded that said Dudley O. Watson should
The proofs fail to show that William G-. Watson ever-purchased the Austin mortgage, or ever negotiated for its purchase. Watson, before the time he had his correspondence with Fralick, had contemplated foreclosing-his mortgage, but found he could only foreclose for what was due. He first wrote to Fralick, asking him how long-he would let the Austin mortgage run, as he thought the tenant upon the place might buy the farm. What reply Fralick made does not appear. Watson afterwards wroteFralick, saying: I do not know any other way than to foreclose at once;” but it is not clear which mortgage-he meant, — his own or the one in Fralick's hands. Fralick writes him to foreclose his (Watson's) mortgage at once. Watson replies that he cannot do so, because his-, mortgage is not all due. Fralick then makes the offer heretofore stated, and Watson finally agrees to pay the-$30 if Fralick will foreclose. All that appears from this-correspondence and Fralick's testimony is that Boyes was paying no interest on the Austin mortgage, and Watson, who held the second mortgage, which he could not foreclose for the full amount, wanted Fralick to-
When the sale took place under this foreclosure, in the •absence of any agreement, the administrator of Watson was under no obligation to take care of or look after the- interests of the railroad companies. These companies were present by their solicitor, and knew the situation. They acquired their rights in this strip of land with notice of these mortgages, which were of record. They took this strip' subject to these mortgages. The premises were offered for sale in two parcels, and, in accordance with the law and practice in such cases, the farm without the railroad strip was first put up. Before this was done, Watson’s attorney gave notice of the Watson mortgage, and that it covered both parcels. It was the duty of Mr. O’Brien, solicitor for the railroad companies, to take such steps as were open to him to protect his clients’ interests. He could have bid upon this first parcel up to the amount of the two mortgages, if the land was worth it, as now claimed, and thereby freed the railroad strip from both mortgages. There was no legal or equitable obligation resting upon Watson to bid upon both parcels, when he could protect himself by bidding upon one. It does not appear that he was •conducting the sale, that he had anything to do with the order of sale, or that he prevented Mr. O’Brien from bidding upon the first parcel.
It is claimed, however, in defendants’ brief, that the administrator made an agreement with Mr. O’Brien that the land should be offered in two parcels, as it was, and that the proportionate share of the railroad parcel was $118; that Watson should bid in the farm at the'amount of the Austin mortgage debt, less $118, and that O’Brien should bid in the railroad strip at $118, thus freeing
“The complainant was present by his solicitor, Mr. Lawrence. * * * There was an understanding 'between Mr. O'Brien and complainant that the parcels should be put up separately, and the amount that complainant would bid upon the whole farm, and then upon the-right of way; bid the amount that was due upon the whole farm, the complainant bid the whole amount except the $118.”
In using the word “complainant” Mr. Farr evidently-referred to Austin, and not to Dudley O. Watson. Mr. Farr further stated in the court below that the complainant, meaning Austin, bid the whole amount due, less $118, upon the first parcel, and then $118 was bid upon the railroad strip; that the administrator, meaning-Watson, then bid the whole amount due upon the first parcel, and the strip was not sold. Dudley O. Watson swears that he never directed anybody as to the manner in which these parcels should be sold, nor did any one-for him, to his knowledge. Mr. O'Brien is not sworn, and there is not a particle of proof from any source that Watson made any arrangements with O'Brien or any one else as to this sale.
It is contended by defendants' counsel that the complainant in this case stands in the relation of assignee of the Austin mortgage, and not as purchaser of the-lands. One of the reasons for this contention has been heretofore disposed of, to wit, that William G-. Watson was in equity an assignee because of his dealings with
There is ño legal or equitable obligation resting upon
The decree of the court below is affirmed, with costs.