Daugherty v. Sharp

• Decision Date: 09 October 1908
• Docket Number: 3,974.
• Citation: 171 F. 466
• Parties: DAUGHERTY v. SHARP et al.
• Court: U.S. District Court — Eastern District of Michigan

171 F. 466

DAUGHERTY v. SHARP et al.

No. 3,974.

United States Circuit Court, E.D. Michigan, Southern Division.

October 9, 1908

Removal of Cases 5

John C Sharp, Wilson & Cobb, and Eugene Pringle, for the motion.

Robert Campbell, opposed.

Before HARLAN, Circuit Justice, and SWAN, District Judge.

SWAN District Judge.

The facts involved in this motion are set forth in the opinion of Chief Justice Carpenter of the Supreme Court of the state of Michigan in the cases of Hatch v. Daugherty et al., Hatch v. Sharp, Adm'r, et al., and Daugherty v Hatch, Sharp, Adm'r, et al., 145 Mich. 569, 108 N.W 986, as follows:

December 3, 1884, James C. Deyo, since deceased, executed a mortgage to one John G. Carter, upon certain land owned by the former, called the 'Biddle street property,' in the city of Jackson. June 25, 1896, Carter assigned this mortgage to Luella J. Shaw, Deyo's daughter, who subsequently assigned it to James D. Shaw, her son. James D. Shaw subsequently assigned the mortgage to James L. Daugherty. January 29, 1892, Deyo gave a mortgage to George N. Hatch upon the same and other property; this latter mortgage containing a recital that it was subject to the prior mortgage to Carter. August 10, 1896, Deyo assigned to Luella J. Shaw, who then held the Carter mortgage, the right to collect and receive certain rents as security for the interest due and to become due upon that mortgage. Deyo died the 24th day of October, 1896. The first of the three suits above named was one brought by the second mortgagee, Hatch, to obtain an injunction against the statutory foreclosure of the first mortgage. The second suit is a suit brought by Hatch to foreclose the second mortgage, and, as incidental thereto, to obtain a decree declaring that the second mortgage is a prior security to the first. The third suit is one brought by Daugherty for the foreclosure of his mortgage. These several suits were consolidated and heard as one in the court below.

In the lower court a decree was rendered, in accordance with the contention of Hatch, ordering the property sold and giving the Hatch mortgage priority to the Carter mortgage. It was also decreed that the defendant Sharp, administrator of the estate of Deyo, should pay to Daugherty from the rents collected by him, which had been assigned as heretofore mentioned, the amounts paid for insurance and taxes, aggregating $729. From that decree Daugherty, the holder of the first mortgage, appealed to the Supreme Court of the state. It is unnecessary to state the grounds upon which the circuit court proceeded, or to detail the reasons for the reversal of its decree by the Supreme Court. It is sufficient to say that the latter tribunal modified the decree of the court below, and made the following order in the consolidated cause:

'These suits having been brought to this court by appeal from the circuit court for the county of Jackson, in chancery, where they were duly considered together, and having been argued by counsel on the original and rehearing, and due deliberation had thereon, it is now ordered, adjudged, and decreed by the court that the decree of the circuit court for the county of Jackson, in chancery, be and the same is hereby affirmed, except as modified by this decree, that is to say: That the injunction bill of George N. Hatch, complainant in the first above entitled cause, be and the same is hereby dismissed, and the defendant, James L. Daugherty, recover of and from the said George N. Hatch his costs of the circuit court for the county of Jackson, in chancery, to be taxed. That the mortgage described in the last above entitled suit, executed by James C. Deyo and wife to John G. Carter, bearing date the 31st day of December, 1884, and recorded in the office of the register of deeds for the county of Jackson, in Liber 76 of Mortgages, at pages 411 and 412, is a valid security as against the heirs of said James C. Deyo, and the mortgage made by said James C. Deyo and wife to said George N. Hatch, and described in the second above entitled cause, for the payment of $3,454.65, that being the sum found due thereon for principal and interest, and $806.97, for insurance and taxes paid on the property described in said mortgage, and interest, making a total of $4,261.62, due April 11, 1907, on so much of the premises therein described as have not been heretofore released from the lien of said mortgage.

That the premises described in said mortgage, and not so released are lots 1 and 2 in block 16 of Knapp's addition to the city of Jackson, in said county of Jackson, and a parcel of land 8 1/2 feet wide and 8 rods long, adjoining said lots on the west, or so much thereof as may be sufficient to raise the amount of money herein found to be due, with interest from the 11th day of April, 1907, and costs of sale, as may be sold separately without material injury to the parties interested, be sold at public auction by one of the circuit court commissioners for said county of Jackson, at any time after the 15th day of May, A.D. 1907, in accordance with the statutes regulating foreclosures of mortgages in circuit courts in chancery and the rules and practice of such courts, and said commissioner shall in all things conform to said statutes, rules, and practice, and the deed or deeds executed on such sale shall have the same force and effect, and be subject to the statutory provisions for redemption, as is made pursuant to the decree of the circuit court for the county of Jackson, in chancery, and the provisions of said decree of said court for sale under said mortgage to George N. Hatch, so far as applicable, shall apply to the sale herein ordered, except as herein modified or otherwise ordered, and that complainant, or any party interested in either of the above entitled suits, may become the purchaser. That the commissioner, from the proceeds of said sale, pay the costs thereof, and pay the balance of such proceeds to the register of the circuit court for the county of Jackson, in chancery, to be held and disposed of as herein ordered. That in case the complainant, James L. Daugherty, shall neglect for 30 days to proceed with said sale, the same may be had at the instance of John C. Sharp, administrator, with the same force and effect as if made...