Cameron v. Adams

• Decision Date: 09 April 1879
• Citation: 40 Mich. 506
• Court: Michigan Supreme Court
• Parties: Warren P. Adams v. Gilbert R. Cameron

40 Mich. 506

Warren P. Adams v. Gilbert R. Cameron

Supreme Court of Michigan

April 9, 1879

Submitted January 31, 1879

Case made from Newaygo. Submitted January 31. Decided April 9.

Judgmente affirmed with costs.

Fuller & Standish for plaintiff.

Gray & Luton for defendant.

Graves J. The other Justices concurred.

OPINION

Graves J.

November 19, 1859, Hiram Butler and wife made their mortgage to plaintiff on the southwest fractional quarter of section 7, in township 12 north of range 13 west, being in the county of Newaygo, to secure payment in five years of $ 200 borrowed money, with annual interest at ten per cent. September 1st, 1868, Butler and wife conveyed to Cameron and wife as joint grantees, but subject to the mortgage. June 28, 1871, Adams commenced foreclosure by advertisement under the power of sale in the mortgage, and on the 21st of September following, the sheriff made sale pursuant to the notice, and deeded the whole premises to Adams as lawful purchaser for $ 315.12.

September 3d, 1873, or nearly two years later, Cameron and wife filed their bill against Adams to redeem the mortgage, and the grounds finally relied on were first, the waiver of the right accruing from the sale by the receipt of a payment of $ 100 on the mortgage after the sale; second, the accidental inability by disease of Cameron to make redemption within the year; and third, the great disparity between the sale price and the value of the premises. September 9th, 1873, being six days after the filing of the bill, Adams commenced this action of ejectment in the same circuit to recover the premises. Issue was joined and the action was then stayed to await the determination of the case in equity. April 1st, 1874, that cause was brought to hearing before the circuit court on pleadings and proofs, and the circuit judge made a decree allowing redemption on payment of the remaining principal and interest called for by the mortgage together with the costs of foreclosure in four months, and ordering the bill to be dismissed in case of non-payment.

Adams appealed to this court, and in August of the same year Mrs. Cameron died. April 30, 1875, this court reversed the decree below and dismissed the bill. The case is reported in 31 Mich. 426.

January 12, 1877, the present case went to trial before a jury, and Adams was allowed to recover the whole premises of Gilbert R. Cameron as survivor of himself and wife, and Cameron now asks a review of certain rulings in the action.

When the deed given on foreclosure and the sheriff's affidavit of the sale were introduced, it was objected, first, that it did not appear from the deed that Adams bid for each parcel the distinct sum which the deed represented the parcel was sold for, and that he was the highest bidder; second, that the sheriff's affidavit did not cure the defect since it was equally deficient; and third , that the certificate of the time when the deed would be operative, was not in compliance with the statute. Comp. L. § 6920.

There are several reasons for overruling these exceptions. It is sufficient to refer to one. The instruments mentioned contradict the assumptions on which the objections rest. The deed recites that the premises were sold to Adams for $ 315.12, that being the highest bid and he the highest bidder; and this is immediately succeeded by the explanation that the premises were sold in four designated parcels and each for a specific sum, and these sums aggregate the amount first mentioned, namely $ 315.12. The sense is clear that each parcel was sold to Adams for the price affixed, and that such price was the highest sum bid therefor, and that he was the highest bidder. Nothing further is required on the first and second grounds.

The sheriff certified that the deed would become operative at the expiration of one year from the twenty-first day of September, 1871 (the day of sale), "unless otherwise redeemed according to law in such case made and provided." It is objected that the word "otherwise" causes a fatal ambiguity, and that the certificate conveys the impression that the whole premises, if any, would have to be redeemed. That the legal effect is not changed by the word complained of, is too plain to excuse comment. The redemption signified was the redemption authorized by law, and that was not only certain, but practicable. The deed showed on its face that there was opportunity to redeem any one or more parcels.

The plaintiff adduced evidence of Mrs. Cameron's death. The fact was objected to as incompetent. No explanation was offered. It is now asserted by way of reason for the objection, that her death had not been suggested of record. Without going further, it is enough to say that the exception was incomplete for want of specification, and moreover that we have no evidence that a suggestion was not entered. The case does not allege that it was not, and the record is not before us. That appears affirmatively, and we cannot assume that Mrs. Cameron's death was not suggested.

The defendant offered to show that the property mortgaged was a farm, and so situated and improved as to make it subject to sale as one parcel, and that it probably would have sold for a higher price than the sum obtained if it had been so disposed of: and further, that the parcel occupied as homestead was first sold. The offer was refused on an objection that the suit in chancery estopped the defendant from setting up the matters proposed against the sale. No special discussion is necessary in regard to the principles which govern the operation of decrees in silencing new contentions. In general the effect of an unqualified dismissal on the merits is conclusive on whatever matters are involved in the decision. Freeman on Judgments, ch. 22; Daniell's Ch. Pr., 659 and note: 994 and note; Story's Eq. Pl., § 793; Mitford's Pl., 238, 239. The adjudged cases are too numerous to be cited.

In suits to redeem, the consequence of the decree is an immediate and absolute foreclosure, and hence a complete bar of the mortgagor's rights. Goodenow v. Curtis 33 Mich. 505; Cholmley v. Countess Dowager of Oxford, 2 Atk. 267: 2 Spence Eq. Jur., 671; Palk v. Lord Clinton, 12 Ves. 48, 62; Bishop of Winchester v. Paine, 11 Ves. 194, 199; Perine v. Dunn, 4 Johns. Ch. 140; Borrowscale v. Tuttle, 87 Mass. 377, 5 Allen 377; Lansing v. Russell, 13 Barb. 510; Burhans v. Van Zandt, 3 Seld. 523; Wilcox...