O'Connor v. Keenan

• Decision Date: 07 April 1903
• Citation: 132 Mich. 646,94 N.W. 186
• Parties: O'CONNOR v. KEENAN et al. (HOWLAND, Intervener).
• Court: Michigan Supreme Court

94 N.W. 186

132 Mich. 646

O'CONNOR v. KEENAN et al. (HOWLAND, Intervener).

Supreme Court of Michigan

April 7, 1903

Appeal from Circuit Court, Wayne County, in Chancery; Robert E Frazer, Judge.

Action for partition by Timothy O'Connor, as trustee for the children of Mary Ann Danaher, deceased, against William J Keenan and others, defendants, and J. Ward Howland, executor of the will of John Ward, deceased, intervener. From a judgment awarding partition, and declaring certain mortgage foreclosure sales to the intervener to be void, the intervener appeals. Modified.

One Honora Keenan died intestate October 13, 1898, seised of certain lands, and leaving as her sole heirs at law four children, William J., Michael J., Thomas P., and Mary Ann Danaher. Mrs. Danaher died December 1, 1896, leaving a will by which she devised her one-fourth interest in these lands to complainant, Timothy O'Connor, in trust for her three children. He filed this bill February 3, 1898, to secure a partition of the lands. Thomas P. died June 7, 1897 intestate. His one-fourth interest thus passed to his two brothers and the children of his sister, subject to a mortgage of $300. Michael J. executed five mortgages on his one-fourth interest, aggregating $1,175. He died November 20 1899, leaving a widow and three children. Decree for partition was entered April 17, 1900. On March 12, 1900, one Mary Barnard, the mortgagee of the above mortgages, commenced foreclosure, by advertisement, of the Thomas P. Keenan mortgage and the last of the Michael J. Keenan mortgages. Sales were had, and the mortgaged interests were bid in by Charles Amsden and J. Ward Howland, executors of the will of John Ward, deceased. The lands were sold in three parcels the third parcel being described as follows: 'Lots 17, 18 and the southerly forth feet of lot 16 of the subdivision of that part of private claim 10, occupied as one parcel.' The parties did not redeem, and, after the expiration of the time of redemption, Mr. Howland, as surviving and sole executor, presented to the court his petition under Comp. Laws, � 11,020, reading as follows: 'If at any time prior to the confirmation of the report of the commissioners appointed to make such partition any person * * * has acquired a title in fee to any part of said premises by virtue of any mortgage or execution sale of any interest thereon, shall apply to the court by petition setting forth his interest in the premises, the court shall thereupon direct that such person be made a party to such proceedings and shall make such other or further orders or decrees respecting the rights of such person as shall be agreeable to equity.' The petition was resisted by defendants for the following reasons: '(1) The defendant Barnard had no right to foreclose her mortgages, because she was a party to the cause. She must wait the end of the partition suit, and only enforce her securities then. (2) The defendants claimed that Mr. Howland had verbally agreed to extend the time for redemption. (3) Lots 17, 18, and the southerly 40 feet of lot 16 were improperly sold as one parcel, and for that reason the foreclosures were void.' The court sustained the third contention, set aside the foreclosure sales, and admitted Howland as a defendant as mortgagee only. The statute governing foreclosure sales reads as follows: 'If the mortgaged premises consist of distinct farms, tracts or lots not occupied as one parcel, they shall be sold separately, and no more farms, tracts or lots shall be sold than shall be necessary to satisfy the amount due on such mortgage at the date of the notice of sale, with interest and the costs and expenses allowed by law; but if distinct lots be occupied as one parcel they may, in such case, be sold together.' Comp. Laws, � 11,139. Aside from the three distinct descriptions contained in parcel 3, the record discloses that on each separate lot were a house and outbuildings inclosed by fences running back about 150 feet; that each house and the land connected with it by fences and by plowed ditches, extending from the fences to the rear end, was occupied separately by tenants, and the entire parcel 3 was inclosed by fences. Mrs. Honora Keenan purchased these lots by three different deeds at different times, and from three different parties. The description in the first deed was lot 18 and southerly 20 feet of lot 17, that in the second deed was the northerly 60 feet of the southerly 80 feet of lot 17, and that in the third deed was the southerly 40 feet of lot 16 and the...