Balen v. Mercier

• Decision Date: 07 June 1889
• Citation: 42 N.W. 666,75 Mich. 42
• Court: Michigan Supreme Court
• Parties: BALEN v. MERCIER ET AL.

42 N.W. 666

75 Mich. 42

BALEN v. MERCIER ET AL.

Supreme Court of Michigan

June 7, 1889

Appeal from circuit court, Roscommon county, in chancery.

Bill by Fanny R. S. Balen against Ursula C. Mercier and others to foreclose a mortgage. From a decree dismissing the bill as to defendant Keith, and adjudicating priorities as between complainant and defendant Crisman, complainant appeals.

CHAMPLIN J.

A bill of complaint was filed on January 20, 1887, to foreclose a mortgage given by defendant Ursula C. Mercier to complainant dated May 10, 1882, and recorded in Roscommon county May 24 1882, and in Cheboygan county May 25, 1882, to secure the payment of $3,000 on May 10, 1885, with interest at 10 per cent. per annum, payable semi-annually, and six interest notes for the accruing interest, said interest notes maturing at the times interest was payable for said loan. The property covered by the mortgage is situated in the counties of Roscommon and Cheboygan, and is described therein and in the bill of complaint as follows, viz: "Lots numbered nine (9) and ten (10) of block numbered thirty-five (35) in the village of Roscommon, in Higgins township, according to the recorded plat thereof. Also, all her right, title, and interest in any and all contracts she may have with Waterman Davidson & Co. to the north one-half (1/2) of the south-west quarter, (1/4,) and the north-west one-quarter (1/4) of the south-east one-quarter, (1/4,) of section four (4) in town twenty-four (24) north, of range one (1) west. Also, all her right, title, and interest she may have in any and all contracts to lots number one (1) and two (2) in block seventy-four, (74,) Mackinaw City. Said contract recorded in Liber K of Deeds, on pages 267 and 268, in register's office of Cheboygan county, Michigan, on the 31st day of March, 1882." The bill contains the usual allegations found in foreclosure bills, and it shows that this mortgage was recorded in the office of the register of deeds for Roscommon county on May 24, 1882, in Liber 3 of Mortgages, on page 306, and in the office of the register of deeds for Cheboygan county on May 25, 1882, in Liber D of Mortgages on page 439, 441. It further alleges that, at the time of the execution and delivery of the notes and mortgages, Mrs. Mercier held a contract from Waterman, Davidson & Co. for the purchase from them of the north half of the south-west quarter, and north-west quarter of south-west quarter, of section 24, aforesaid, dated November 7, 1881, and recorded in the office of the register of deeds for Roscommon county on May 15, 1882, in Liber I of Miscellaneous Records, page 140; and that since the execution of the mortgage, and on the 26th day of December, 1885, Mrs. Mercier acquired the legal title to said lands; and the bill claims that all the right, title, and interest acquired by Mrs. Mercier in said lands after the execution and delivery of the mortgage inures to the benefit of complainant, and is subject to and covered by her said mortgage. Defendant Keith answered, and set up that Mrs. Mercier made default under her contract, and neglected to pay either principal or interest, and such proceedings were had that she was divested of all right to the land, and requested him to step in and buy the land, which he did, and paid the purchase price to Waterman; that, before he would advance the money to buy, he insisted that Mrs. Mercier should give him a deed, which she did, dated November 13, 1885; that Waterman, by mistake, made the deed to her instead of to him; that he advanced $300 for principal and $18 for taxes.

We think the court exercised a proper discretion in allowing defendant Crisman to file amendments to his answer setting up want of notice or knowledge of complainant's mortgage. Answers under oath were waived, and the amendment was in furtherance of justice. It contained no admissions which could avail complainant as evidence, and was not evidence in defendant's behalf, and under the circumstances the signature was a mere formality that could be dispensed with. Had the bill called for answer under oath, the case would have been different, and an unsworn and unsigned amendment would not be permitted.

The defendant Crisman claims that at the time Mrs. Mercier executed the mortgage to Mrs. Balen she had no title to lots 1 and 2, block 74, Mackinaw City, but at the date thereof the title was in one Henry Conkling, in fee; that in August, 1882, she desired to borrow of defendant Crisman $2,500, and to secure him upon said lots; that, for the purpose of ascertaining whether the security was good, he went to MacKinaw City to examine and ascertain the title to said lots and that, upon arriving there, he ascertained that she had no title to said lots, but held a land contract from Henry Conkling for the purchase of the same, upon which $200 had been paid by her, leaving a balance still due of $530. Defendant informed her that she had no title to the lots, but, if Conkling's title was perfect and he would convey to her his title, defendant would loan her said sum. They then, with Conkling, went to the register's office for the purpose of examining the title of Conkling to the lots, and found his title perfect. Defendant then, at Mrs. Mercier's request, paid the balance to Conkling, and he executed a warranty deed of said lots to Mrs. Mercier, and she thereupon executed a mortgage to him to secure the payment of $2,500, which was the sum loaned at that time, including the purchase money aforesaid. This was September 1, 1882. That the money was loaned to her for the express purpose of paying the balance due upon the contract, and getting title from Conkling, and for the purpose of paying for materials and labor contracted by said Mercier for the purpose of erecting an hotel on said lots; and that such money was so used and for no other purpose. Afterwards, he loaned her an additional sum of $500, for which she gave her note and another mortgage on said lots; and later still, being some time in December, 1884, Mrs. Mercier desiring a still further loan in order to pay for materials and workmen upon said hotel, and prevent liens for labor and material being laid thereon, he loaned her an additional sum of $2,100, and the two prior mortgages were discharged, and the whole loan was embraced in one sum of $5,100, and a mortgage was executed covering said lots for the whole amount. Defendant claims that during all this time he had no actual notice or knowledge of complainant's mortgage. After hearing proofs, the circuit court dismissed the bill of complaint as to Kieth; and as to the property covered by the Crisman mortgage he decreed as follows: " First. That there is due to the complainant upon her note and mortgage mentioned and set forth in the bill of complaint herein for principal and interest to this date the sum of four thousand one hundred and thirty dollars and twenty cents, ($4,130.20.) Second. That there is due to the defendant Frederick Crisman upon his note and mortgage set forth in his amended answer, filed herein, for principal and interest to date, including the several sums of money paid by said defendant for insurance upon the property covered by his said mortgage, the sum of six thousand six hundred eighty-four dollars and eighty-nine cents, ($6,684.89.) Third. That the complainant has a lien upon lots 1 and 2 in block 75 in Mackinaw City, in the county of Cheboygan and state of Michigan, being a portion of the property covered by her said mortgage, for the amount that had been paid by the defendant Ursula Celina Mercier upon the contract given to her by Henry Conkling for the sale thereof to her, dated on the 1st day of April, A. D. 1882, at the time of the execution of the defendant Crisman's mortgage, (which was on the 27th day of December, A. D. 1882,) which amount is two hundred dollars, ($200.00,) with interest thereon at the rate of 10 per cent. per annum, payable semi-annually from the date of the complainant's said mortgage, viz., May 10, A. D. 1882, which is prior, superior, and paramount to the lien of the defendant Crisman thereon; and that the defendant Crisman has a lien thereon, subject to the lien of the complainant for the said sum of two hundred dollars ($200.00) and interest, as aforesaid, for the aforesaid sum of six thousand six hundred and eighty-four dollars and eighty-nine cents, ($6,684.89,) which is prior, superior, and paramount to the lien thereon for the amount due to the complainant as aforesaid, over and above the said sum of two hundred ($200.00) and interest, aforesaid; and that the said complainant next has a lien thereon, subject to the said lien of defendant Crisman for the amount due her as aforesaid, over and above said sum of two hundred dollars ($200.00) and interest, as aforesaid." He decreed that the Roscommon property covered by the mortgage should be sold first, and gave other directions usual in decrees of foreclosure.

The interests of the two defendants who appeared and answered the bill of complaint will be considered separately. First. As to the controversy between comp...