Cowles v. Marble

• Decision Date: 20 June 1877
• Citation: 37 Mich. 158
• Court: Michigan Supreme Court
• Parties: Albert E. Cowles v. John P. Marble

37 Mich. 158

Albert E. Cowles v. John P. Marble

Supreme Court of Michigan

June 20, 1877

Argued June 13, 1877

Appeal from Ingham. (Huntington, J.)

Bill to redeem a mortgage in the form of a deed. The case was tried below on pleadings and proofs, and the bill dismissed with costs by the court. Reversed.

Decree reversed, and a decree entered and remitted to the circuit court for execution.

Cowles & Cahill for complainant appellant. A deed given to secure the payment of money is a mortgage (3 Leading Cases in Equity, 624-628, and cases there cited; Wadsworth v. Loranger Har. Ch. 113; Emerson v. Atwater 7 Mich. 22; Comstock v Howard Wal. Ch. 110; Batty v. Snook 5 Mich. 231; Enos v Sutherland 11 Mich. 538; Cornell v. Hall 22 Mich. 377) whether there is a promise to repay or not; and "once a mortgage, always a mortgage." The right of redemption can be released only for a valuable consideration; a subsequent agreement tending to defeat or impair it, will be as invalid as if made contemporaneously with the execution of the mortgage (3 Leading Cases in Equity, 608, 625, 643; Patterson v. Yeaton 47 Me. 308; Clark v. Condit 18 N.J.Eq 358; Perkins v. Drye 3 Dana 177; Hyndman v. Hyndman 19 Vt 13; Russell v. Southard 12 How. 155; Holridge v. Gillespie 2 Johns. Ch. 34; Rice v. Dewey 54 Barb. 455). The deed from Dean to Marble operated as an assignment of the mortgage (Niles v. Ransford 1 Mich. 343; Ellison v. Daniels 11 N.H. 274; Thayer v. McGee 20 Mich. 195, 208). Refusal of a tender of the amount due on a mortgage discharges its lien on the land (Caruthers v. Humphrey 12 Mich. 270, 277; Van Husen v. Kanouse 13 Mich. 303, 313; Kortright v. Cady 21 N.Y. 343; Flanders v. Chamberlain 24 Mich. 310; Eslow v. Mitchell 26 Mich. 500; Green v. Langdon 28 Mich. 227-8; Collar v. Harrison 30 Mich. 66; Potts v. Plaisted 30 Mich. 149; Sager v. Tupper 35 Mich. 134).

Dart & Shields for defendant appellee.

OPINION

Campbell, J.

This is a bill to redeem a mortgage. The facts are very simple, and involve no difficulties.

On the 27th of March, 1860, one George I. Parsons made a conveyance to Almond R Dean of the land in controversy "to secure the payment of four hundred and sixty-eight dollars to said Dean by Abner E. Richardson, on or before the first day of September [then] next." In 1870 Dean conveyed the land to defendant Marble. In 1874 Parsons and Richardson, who had an equitable interest in the property, made sale and conveyances to complainant. On the 8th day of May, 1874, Cowles made a tender to Marble of $ 1181.00, which was the full amount due on the mortgage, and demanded a release, but Marble refused to accept the money or discharge the mortgage.

The defense is that the instrument was a deed and not a mortgage, and that there was after its date a parol admission of the absolute title of the grantee and a renunciation of any rights in the land.

As this instrument purports on its face to be given to secure the payment of a certain sum of money, it is a mortgage, and nothing else. The omission of a power of sale would only serve to prevent a foreclosure by any other means than a bill in equity; and the doctrines applicable to such instruments are too familiar to bear discussion. There is nothing in the case to show any valid contract or any equitable reason for cutting off the redemption, which could only be done by a proper conveyance under the statute of frauds, and which was neither agreed to in that way nor based on any consideration if attempted to be made verbally. The only facts bearing on such a theory seem to be that one of the parties interested was ignorant of his rights, and assumed they were forfeited, but never agreed to give them up.

The tender of the amount due authorized complainant to have a discharge, and the refusal of the discharge entitled him to the statutory penalty, which may be recovered in equity on a bill to redeem. Collar v. Harrison 28 Mich. 518; Same v. Same 30 Mich. 66; Barnard v. Harrison 30 Mich. 8.

It is urged that the tender removed the lien, and that complainant is entitled to have the mortgage discharged without any further payment. If the mortgagee had sought to foreclose, we have held that a tender would be a good defense. Caruthers v. Humphrey 12 Mich. 270; Van Husan v Kanouse 13 Mich. 303; Eslow v. Mitchell 26 Mich. 500; Potts v. Plaisted 30 Mich. 149; Flanders v. Chamberlain 24 Mich. 305.

But a party seeking equitable relief as a complainant must be prepared to do equity. Equity requires that the mortgagee should have his money, and no redemption will be decreed on any other terms. A tender will stop interest, but it does not discharge a debt.

Complainant is entitled to redeem by paying the amount tendered, less the statutory penalty of $ 100 and the costs of this Court and of the circuit court, and on such payment to have the mortgage discharged by proper deed of release. In case of non-payment of the money within three months from the entry of decree, the land must be sold in analogy to foreclosure sales.

The decree must be reversed, and a decree entered in this Court in accordance with these directions, and remitted to the circuit court for execution if redemption is not made within three months as aforesaid.

The other Justices concurred.

For other cases of constructive mortgages see Wadsworth v. Loranger Har. Ch. 113; Thompson v. Mack id. 150; Abbott v. Godfroy's Heirs 1 Mich. 178; Campau v. Chene id. 401; Fuller v. Parrish 3 Mich. 211; Swetland v. Swetland id. 482; Batty v. Snook 5 Mich. 231; Emerson v. Atwater 7 Mich. 12; Enos v. Sutherland 11 Mich. 538; McKinney v. Miller 19 Mich. 142; Gunderman v. Gunnison 39 Mich. 313; State Bank of Bay City v. Chapelle 40 Mich. 447; Curtiss v. Sheldon 47 Mich. 262; Jeffrey v. Hursh 49 Mich. 31; 58 Mich. 246; Hurst v. Beaver 50 Mich. 612, 16 N.W. 165; Ferris v. Wilcox 51 Mich. 105, 16 N.W. 252; Stevens v. Hulin 53 Mich. 93, 18 N.W. 569; Stanley v. Nye 54 Mich. 277, 20 N.W. 73.

The right to sell upon foreclosure at law is confined by How. Stat. § 8497 (see notes thereto) to mortgages containing a power of sale (Doyle v. Howard 16 Mich. 261; Hebert v. Bulte 42 Mich. 489, 4 N.W. 215) such power being no necessary part of a mortgage. State Bank v. Chapelle 40 Mich. 447.

The equity of redemption cannot be barred by the mortgagee's assumption of title as shown by his giving a deed, nor by occasional occupancy thereunder: Humphrey v. Hurd 29 Mich. 44: a second mortgagee's right to redeem is barred by allowing the foreclosure of the first mortgage to become absolute. Gantz v. Toles 40 Mich. 725.

Tender does not discharge the debt, but the lien: Moynahan v Moore 9 Mich. 9: Caruthers v. Humphrey 12 Mich. 270; Van Husan v. Kanouse 13 Mich. 303; Eslow v. Mitchell 26 Mich. 500 and note; Potts v. Plaisted 30 Mich. 149; Ferguson v. Popp 42 Mich. 115, 3 N.W. 287; Engle v. Hall 45 Mich. 57, 7 N.W. 239; Post v. Springsted 49 Mich. 90, 13 N.W. 370; Sinclair v. Learned 51 Mich. 335, 16 N.W. 672; Norton v. Tharp 53 Mich. 146, 18 N.W. 601; Jones v. Shaw 56 Mich. 332, 23 N.W. 33; (stops interest) Shutes...