139 Mich. 634 | Mich. | 1905
Defendant, July 22, 1886, borrowed $500 from complainant, giving a note therefor, due five years after date, drawing interest at 10 per cent, per annum. To secure payment he executed to complainant a mortgage on the north half of the north half of the southeast quarter, and the northeast quarter of the southwest quarter, of section 25, town 18 north, range 16 west. This mortgage seems to have been recorded July 24, 1886.
In 1891 an attempt was made to foreclose this mortgage by advertisement. The notice of sale is dated January 15,1891, which, it will be noticed, is more than six months before the note fell due. The notice recites that the mortgage, after being given, was assigned to one C. H. Wood-ruff, without stating anything further about the assignment, and describes the premises to be sold as the north half of the north half of the southeast quarter, and the
The brief of counsel for appellant contends that the only ground urged for relief is that complainant’s agent, who foreclosed the mortgage, made a mistake in omitting one description contained in the mortgage from the notice of sale, and that this calls for the application of the elementary rule that a court of chancery will assist only the vigilant. He also urges that the mortgagee being purchaser at such a sale takes title with notice of the defects in the foreclosure proceedings, and cannot be heard to say that the sale is illegal or irregular when the mortgagor makes no objection. It is claimed that the sum bid at the first sale must be presumed to have been paid to the assignee of the mortgage, C. H. Woodruff, resulting in payment of the mortgage indebtedness. We see no reason for indulging a presumption of fact opposed to the real fact found by the court. It will be noticed, and has been al
Counsel for appellant say in their brief:
“ In any case, the amount declared tobe due by the decree, as well as the method of computation, is so culpably erroneous as to call for but little comment.
“As an instance, the credits to the defendant are placed at the paltry sum of $272.98, which included interest on credits at 10 per cent., and is put forward as full compensation for the use of the whole premises for 11 years and over, in face of the testimony of complainant’s own witness Parker that the value of the use was at least $60 per year, which, with the average interest computed at 10 per cent., amounts to $993.”
Complainant, after stating the years for which he had paid taxes and the amounts paid for taxes, computed that there was due him on the 1st of January, 1903, $1,685.18; that, “putting in everything I had received, and crediting interest on everything I had received at the same rate, ” the total of credits was $272.98. This left a balance of $1,412.20. He was not cross-examined upon this subject at all, nor did counsel point out in what respect, if any, the computation was erroneous. As matter of fact, it is substantially what the note would have amounted to at simple interest at 10 per cent, if we treat the principal sum as $750 after the maturity of the note. Another witness testified that the fair rental value of the place from the time he went there until he went away was $60 a year. When he went there and when he went away the record
The decree of the court below is affirmed, with costs.