Dohm v. Haskin

• Decision Date: 30 October 1891
• Court: Michigan Supreme Court
• Parties: DOHM v. HASKIN et ux.

50 N.W. 108

88 Mich. 144

DOHM v. HASKIN et ux.

Supreme Court of Michigan

October 30, 1891

Appeal from circuit court, Berrien county, in chancery; THOMAS O'HARA, Judge.

Suit in equity by Mary Dohm against Malcolm B. Haskin and Eleanor Haskin. Judgment for defendants. Complainant appeals. Affirmed.

Edward Bacon, for appellant.

George S. Clapp and George M. Valentine for appellees.

GRANT J.

In 1874, Almerian and Malcolm B. Haskin became the owners as tenants in common of a flouring-mill, the property in dispute in this case. August 29, 1885, Almerian sold and deeded his half interest to George E. Hotchkin, who executed a mortgage to him for the full purchase price. Hotchin and Malcolm Haskin carried on the business as copartners until September, 1888, when Hotchkin conveyed his undivided interest to complainant, and the partnership was dissolved. Malcolm then leased complainant's interest for a year for $300. Soon after the organization of the partnership between Hotchkin and Malcolm it was considered necessary, in order to insure success, to put in the "roller process" machinery. Hotchkin had no means, and it was agreed that Malcolm should furnish the money, and that Hotchkin should give him a mortgage on his half interest to secure the payment. Half of the expense amounted to $1,325. June 22, 1885, Hotchkin executed a mortgage for this amount on his interest in the mill property, and also executed a chattel mortgage for the same debt on the machinery. On October 3, 1888, Malcolm commenced the foreclosure of this mortgage by advertisement. The sale took place December 31st, Malcolm bidding the property in for $1,106.08, and the deed was recorded January 9, 1889. Two bidders only were present at the sale, Malcolm and complainant, through her husband, who was acting as her agent Malcolm then gave notice of this chattel mortgage which he had filed December 12th, and of his intention to foreclose it as against any purchaser at that sale. Plaintiff and her agent both knew that this chattel mortgage was for the same debt as the other mortgage. Meanwhile Malcolm procured an assignment of the mortgage given by Hotchkin to Almerian, and on February 6, 1889, commenced a foreclosure by advertisement, the amount due being between $1,100 and $1,200, exclusive of interest. The sale took place May 7 1889, for the sum of $1,312.73, and the sheriff's deed thereupon was duly executed and recorded. May 13, 1889 Malcolm posted notices of sale under his chattel mortgage. Complainant served upon him a written protest, but the sale proceeded, Malcolm bidding the property in for the sum of $300. The mortgage given by Hotchkin to Almerian was recorded subsequently to the mortgage given to Malcolm. The assignment of this mortgage to Malcolm was executed in Kansas. It has but one witness, and purports to be acknowledged before a notary public. No certificate of a clerk, or other proper...