Carter v. Lewis

• Decision Date: 06 May 1873
• Citation: 27 Mich. 241
• Court: Michigan Supreme Court
• Parties: John G. Carter v. Eliza S. Lewis

27 Mich. 241

John G. Carter v. Eliza S. Lewis

Supreme Court of Michigan

May 6, 1873

Heard May 1, 1873

Appeal in Chancery from Jackson Circuit.

Decree affirmed, with costs.

Gibson & Wolcott, for complainant.

Melville McGee, for defendant.

OPINION

Graves J.

The complainant filed this bill to settle his right as a subsequent mortgagee, to redeem a prior mortgage which had been foreclosed at law, and to obtain an adjudication upon the effect of measures taken to produce such redemption. The sale under the foreclosure at law of the prior mortgage was made on the first day of November, 1870 and the time given by the statute for redemption in such cases is one year from the sale. Before the expiration of the year, and on the 30th day of October, 1871, the complainant called on the register of deeds at his office, for the purpose of making redemption pursuant to the statute, and the circumstances which then occurred are claimed by him to have worked such redemption. The defendant maintains that complainant was in no situation to redeem, but if he was that the course taken was ineffectual. The court below decreed that complainant was entitled to redeem, and, moreover, that the acts done amounted to a redemption. From that decree the defendant has appealed, and she makes two objections.

The first, which was faintly pressed on the hearing, is supposed to be supported by the terms of § 6922, Comp. L., where provision is made for redemption in cases of foreclosure under the power of sale. It is said that in this State, and at the present time, a mortgagee can hardly be considered as holding "under" the mortgagor so as to come within the description of the class allowed to redeem within the year from the sale made under the power.

While we do not admit that this statute, which was made to regulate the exercise of the power of sale, would preclude a subsequent mortgagee from redeeming, even if the terms were such as to confine the right to those holding "under" the mortgagor, we find that another passage in the law, which seems to have been overlooked, is so plain and ample as to take away all pretense for the objection. The right to redeem is not only given to "any person lawfully claiming under," but likewise to "any person lawfully claiming from" the mortgagor, and certainly there is no possible room for saying that the mortgagee does not claim from the mortgagor.

In support of the second objection it is urged that the register of deeds is allowed to receive nothing but money for redemption where the...