Redfield v. Reid

Grant, J. (after stating the facts). 1. No defense was made in the court below. It is conceded that the [548] mortgagor was in default, and that the amounts due on the two mortgages are correct. Counsel for the appellant, the William Reid Company, insists that the decree should be reversed and the cross-bill dismissed, and the cross-complainant be relegated to its decree of foreclosure and sale in its original case, and be decreed to take steps to sell at once. No such claim was set up in the answer or made upon the hearing in the court below. It cannot, therefore, be made in the appellate court. Miller v. Walker, 141 Mich. 433. If, however, the point were properly made, it could not be sustained. It is not in the power of the mortgagor to say when the mortgagee under his decree shall sell. Neither is it in the power of the courts. In this case it was most equitable and just to all parties that the sale under the decree of the Window Glass Company should await the foreclosure of the prior mortgage. It was entitled to a sale of parcel A first. The owner of the land was not prejudiced thereby. 2. Reversal is asked because of the short period between the decree and the sale. Counsel for the appellant contends that 11 days was not a reasonable time allowed for redemption before sale, citing Detroit Savings Bank v. Truesdail, 38 Mich. 430, and Fifth Nat. Bank v. Pierce, 117 Mich. 376. Since those decisions were rendered, the legislature, by Act No. 200, Public Acts 1899, required that the lands should not be sold within six months after the filing of a bill of foreclosure, and giving the mortgagor that time within which to redeem. Those decisions, therefore, have no application now. The claim, however, is without merit, for the appellant, defendant, and its grantor had had ample time to redeem before the decree was rendered. The land is not worth the amounts due under the mortgages. Under such circumstances we cannot hold that the time fixed by the decree was unreasonable. The decree is affirmed, with costs. McAlvay, C. J., and Blair, Ostrander, and. Hooker, JJ., concurred.