Vary v. Chatterton

Campbell, J. This is a bill to set aside a statutory foreclosure and obtain a new foreclosure, by reason of a mistake in the sale. In January, 1873, defendants Jewett and Amorette Ohatterton executed to Horace J. Perrin a mortgage for $3000 on 265 acres of farming land, and also lot 17 and the 35 southwesterly feet of lot 18 in Hubbardston, Ionia county, with the brick buildings on the lots. On the 15th of April, 1875, Perrin released from the mortgage all but the town lots. On the 22d of August, 1879, he assigned the mortgage to complainant there being then unpaid $2000, with interest at 10 per cent, from January 13, 1879. This assignment being to her by name as guardian, required no proof of guardianship to authorize her to sue. August 13, 1875, the same mortgagors mortgaged the town lots to Warren A. Sherwood for $1241.78, due in 16 months, with interest at 10 per cent. On the 11th day of February, 1879, Reynolds, as Sherwood’s administrator, filed a bill to foreclose the Sherwood mortgage, but did not make Mrs. Yary a party. It does not appear that her assignor was brought in. On the 17th day of April, 1880, sale was made under the [543] -decree rendered in that case, and the administrator bid in the property and went into possession. The mortgagor is admitted to be insolvent, and to have been so at the time of the statutory sale. January 24, 1880, the mortgage belonging to complainant was foreclosed by statutory sale for the amount due. The notice of foreclosure misdescribed the property, by entirely leaving out lot IT, and this error was followed in the deed. The land was bid off for the entire sum due, and the mistake was not discovered by complainant or her agent until after the redemption expired. An irregular practitioner named Weatherwax claims to have discovered the error, and offered to disclose it if employed to foreclose, but he did not ejqplain what defect he had discovered, and he was a stranger to the interests involved. The court below, on a showing of the facts, granted a new foreclosure in equity. Sherwood’s administrator appeals. The mistake was clearly made out, and it does not appear that complainant was in any way to blame ior it. No new rights have intervened, and Sherwood’s estate has parted with no additional funds. The Sherwood mortgage was taken when the record showed the complainant to have a prior encumbrance on all the property. The record was in the same condition when the Sherwood foreclosure sale was made. There seems to be no good reason why, under these eir■cumstanees, the mistake should not be corrected, and a new foreclosure had. It is claimed, however, that under the terms of the mortgage this town property was only held for $2000, and that the foreclosure shcfuld be confined to one thousand dollars and interest, inasmuch as one thousand dollars of principal was paid several years ago. The clause relied on is the following : “It being hereby agreed that when the mortgage of two thousand dollars given to Greorge Chatterton on the above-described land is fully paid and discharged, and two thousand dollars is paid on this mortgage, then the mort [544] gagee is to release from this mortgage the brick block described herein,” etc. ■ It is a sufficient answer to this suggestion that the mortgage does not confine the security on this land to two thousand dollars or provide that the release shall be made if the mortgagee is obliged to resort to a foreclosure. It is presumable that the release of the remainder of the property was made with the expectation that no further release could be required. No reason can be found for supposing that either party imagined after that release that half of the debt remained unsecured. There are, however, two serious errors in the decree. Two thousand dollars, with interest from January 13, 1879, is all that can be demanded beyond the taxes. The amount, therefore, to be recovered will be $2000, with interest at 10 per cent, from January 13, 1879; and for taxes $40.49, with interest at 7 per cent, from July 31, 1880, and $31.42, with the same rate of interest from December 23, 1881. No costs should be given in either court against the administrator, inasmuch, as the occasion for filing this bill was a mistake in complainant’s own proceedings, for which no one else ought to be compelled to pay. The administrator is entitled to costs of both courts, and complainant must pay them. None of the other parties to pay or recover them. The decree .must be modified to conform to these rulings, and the time for payment be extended until September 1, 1883. The case to be remanded for further proceedings. Graves, O. J. and Cooley, J. concurred.