Dodge v. Brewer
| Decision Date | 26 January 1875 |
| Citation | 31 Mich. 227 |
| Court | Michigan Supreme Court |
| Parties | Thomas F. Dodge v. Lawrence Brewer and another. [1] |
Heard January 19, 1875
Appeal in Chancery from Van Buren Circuit.
Decree affirmed, with costs.
Arthur Brown and Alfred J. Mills, for complainant.
Richards & Barnum and E. R. Annable, for defendants.
Christiancy, J. did not sit in this case.
This is an appeal from a decree for foreclosure and sale. The mortgage was given by Brewer to one Waite, in January, 1867, for one thousand dollars, and interest. The money was payable in three yearly installments.
Brewer making default when the payments of 1868 and 1869 became due, Waite proceeded to foreclose by notice under the power of sale, subject to the last installment, and the proceedings were carried to a sale, Waite being the purchaser, and the sheriff's deed being filed in the register's office. Before the redemption ran out, an arrangement was entered into between Brewer and Waite to extend the time, and payments were afterwards made by Brewer and received by Waite on the strength of it. Both parties understood that the foreclosure was not insisted on, and the proofs show that it was superseded and made abortive. But Brewer failing to pay according to the arrangement within the extended time, Waite caused the sheriff's deed to be recorded, and assigned the mortgage and quitclaimed the land to the complainant. There was no force in the sheriff's deed, because the proceeding on which it depended had been invalidated and abandoned. All right based upon the mortgage was the ordinary one belonging to the holder of an unforeclosed mortgage.
About four days after the assignment to the complainant, Brewer and his attorney, Mr. Stephenson, called on complainant and offered to pay him six hundred and twenty-five dollars in satisfaction of the mortgage debt, but coupled a condition with the offer, that complainant should execute a discharge of the mortgage, and in addition thereto should execute and deliver a quit-claim deed of the land described in the mortgage. This complainant refused to do. But in the course of a few days he called on Stephenson and informed him that he would take the money and execute the papers.
Stephenson, however, then said that he had not got the money, but would obtain it in a short time, and that meanwhile Brewer would allow interest at ten per cent.
Brewer, however, continued in default, and complainant filed the present bill to foreclose.
The only defense is, that the lien of the mortgage was removed from the land by the offer or tender made by Stephenson. Brewer, of course, does not claim that Waite's foreclosure was of any consequence, and complainant, who now stands in Waite's shoes, asserts by his...
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...defendant, the sheriff's deed was absolutely void and plaintiff could have recovered the property notwithstanding the transfer. Dodge v. Brewer, 31 Mich. 227; Frost v. Bank, 70 N.Y. 553; Clute v. Emmerich, 99 N.Y. 342; Benton v. Hatch, 122 N.Y. 322. If Joseph Garbutt was a necessary party t......
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