Bendey v. Townsend

• Court: U.S. Supreme Court
• Writing for the Court: A. T. Britton; GRAY
• Citation: Bendey v. Townsend, 109 U.S. 665, 3 S.Ct. 482, 27 L.Ed. 1065 (1884)
• Decision Date: 07 January 1884
• Parties: BENDEY and Wife v. TOWNSEND and another

109 U.S. 665

3 S.Ct. 482

27 L.Ed. 1065

BENDEY and Wife v. TOWNSEND and another.

January 7, 1884.

C. I. Walker, for appellants.

A. T. Britton, J. H. McGowan, and Walter H. Smith, for appellees.

GRAY, J.

This is an appeal by James Bendey and wife from a decree for the foreclosure of a mortgage of land in Michigan, executed by them at Houghton, in that state, on April 30, 1873, to Samuel S. Smith and William Harris; expressed to be made in consideration of the indorsement by Smith and Harris of sev- eral promissory notes of Bendey therein described, payable to the order of Thomas W. Edwards, at the First National Bank of Houghton; conditioned that if Bendey should pay the notes at maturity, and should save and keep harmless the mortgagees 'of and from all costs and charges arising from or on account of said indorsements,' and empowering the mortgagees, in case of default by Bendey in the payment of the notes, or either of them, to sell the land by public auction and convey it to the purchasers, rendering the surplus money, if any, arising from the sale, to the mortgagors, after deducting the costs and charges of the sale, 'and also one hundred dollars as an attorney fee, should any proceedings be taken to foreclose this indenture under the statute, and the same sum as a solicitor's fee, should any proceedings be taken to foreclose the same in chancery.'

The other facts appearing by the record are as follows: Smith & Harris, who were partners, signed their partnership name upon the back of the notes before their delivery to Edwards. One of these notes, for $5,000, became payable on May 4, 1876, and, not being paid by Bendey, was protested for non-payment, and an action was brought thereon by Edwards against Smith & Harris, who, before judgment in that action, paid the amount of the note, with interest. Edwards indorsed the amount as a full payment on the note, and delivered up the note to Smith & Harris; and they entered the amount paid by them upon their books in their general account against Bendey, and afterwards, on September 5, 1877, assigned the mortgage, and the land therein described, 'together with the note or obligation therein also mentioned,' to 'William Brigham and Amos Townsend, trustees.' The assignment was in fact made in part payment of debts due from Smith & Harris to firms of which Townsend and Brigham were respectively members. Townsend and Brigham, who were citizens of Ohio, filed a bill in equity against Bendey and wife, who were citizens of Michigan, in a court of this state, alleging the facts aforesaid, and praying for an account, for the foreclosure of the mortgage by sale of the land, for the payment by Bendey of any balance remain- ing due to the plaintiff of the principal and interest of the note and mortgage, and for general relief. After the filing of answers and replication, the case was removed, on petition of the defendants, into the circuit court of the United States for the western district of Michigan, and a hearing there had, upon which the facts above stated were proved, and a decree entered that the defendants pay to the plaintiffs the sum of $7,996.59, with interest, together with a solicitor's fee of $100, and that in default of such payment the land be sold by public auction, and conveyed under the direction of a master in chancery, and the proceeds of the sale applied to the payment of...