117 Mich. 202 | Mich. | 1898
Defendant Smith was in 1892 a resident of the State of New York. Mr. Swarthout was his agent at Saginaw in loaning money. June 17, 1892, during the absence of Mr. Swarthout from the State, Mr. Hudson was in charge of his office, and attended to his business. The complainants, who are from Poland, and are unable to read or write the English language, negotiated a loan from Mr. Hudson; and a mortgage was given upon a lot owned by them to Mr. Smith, for $130. There was paid to complainants at this time $118. The principal was
There is testimony tending to show that the complainants understood a payment of interest was made in advance, but, upon considering all the testimony, I do not think the fact is established.' The complainants were not at all clear in their testimony, while Mr. Hudson’s testimony was a detailed statement of what occurred, and it is corroborated by the testimony of Mr. Beelack, who came with the complainants to negotiate the loan. It is claimed by them that the $12 was made up of expense for abstract, for recording the mortgage, $3 to Beelack for his services, and $6.50 commission to Mr. Hudson and Mr. Swarthout for examining the property and making the loan.
As before stated, the complainants do not read English. It does not appear from the record that they had any
“This clause is in the nature of a forfeiture or penalty. Its object is to punish for a willful neglect of a clear duty; and to hold it applicable to, and apply it in, a case where there was an honest dispute, would be harsh and unjust, and contrary to all well-settled equitable principles.”
From what we have already said, it is evident that complainants were not guilty of any willful neglect in not paying what they understood to be due. The amount of interest due and unpaid was but $5.20. Complainants understood that the principal sum would not be due for three years, at least, while there is some testimony that they did not expect it to become due for six years. In Mabie v. Hatinger, 48 Mich. 341, the act of foreclosing
2 How. Stat. § 8500, subd. 1, requires the notice of sale to specify the names of the mortgagors. In this case, one of the mortgagors, whose name was “Tofila,” was described as “Julia.” This is not two different ways of spelling the same name, as was the case in Reading v. Waterman, 46 Mich. 111, but the names are different from each other (see Lee v. Clary, 38 Mich. 223); and we think that stating the name of the mortgagor in the notice to be “Julia,” when the name in fact is “Tofila,” is a fatal defect in the notice.
This is a proceeding that does not commend itself to our sense of justice. As soon as complainants learned that anything had been done to foreclose the mortgage, they made a tender of the full amount due thereon. For the irregularity mentioned, the sale should be set aside, and, upon the payment of the amount.tendered, the mortgage should be discharged. A decree may be entered accordingly, with costs to complainants.