Pearl St Sav & Tr Co. v. Traymore Realty Co.

RICHARDS, J. The mortgagee and the holder of the meeanic’s lien are entitled to have their mortgages and mechanic’s lien foreclosed and the real estate subjected to the satisfaction of the liens, and this should be done on principles of equity in the inverse order of the sales which have been made. In view of the language of the mortgage extending the benefits of all the provisions and conditions thereof to the successors and assigns of the parties, the right to have releases made inures to the benefit of the purchasers of the various lots. It is urged by the plaintiff, under authority of Brown vs. Cleveland Trust Company, 10 O.C.C., N.S., 430, that the right to make payment of the sums fixed by the mortgage and secure a release of the premises conveyed can not exist after an action in foreclosure has been brought. Whatever the rule may be where such claim is made by the mortgagor, it appears to this court that purchases having been made on the faith of the right to have the various lotss purchased released upon payment of the amount stipulated in the mortgage, this right still exists in those who have made such purchases and are now ready, able and willing to make such payments. Vawter vs. Crafts, 41 Minn., 14; Taylor vs. Carter, 211 Mich. 365. Such offers were made informally in the case in the Court of Common Pleas and the amount to be paid should 335 be the amount stipulated plus interest thereon from the time the offer was made in the Court of Common Pleas, but the amounts so to be paid must be paid into court within ten days from the entry of this decree. In order to better protect the rights of' the several interested parties, the sale should be made under 8623-120, GC the details as to upset price, advertising, etc., to be such as may be agreed upon by counsel, and if not so agreed upon, then such as may be fixed by the court. Provision should be made fore receiving separate bids upon the several lots fronting on Pleasant Valley Road and York Road. . WILLIAMS, J. concurs.