Dunn v. Fish
| Decision Date | 23 June 1881 |
| Citation | 9 N.W. 429,46 Mich. 312 |
| Court | Michigan Supreme Court |
| Parties | DUNN v. FISH. |
A release of a parcel of land from a mortgage does not defeat the right to sell the rest of the mortgaged premises under a power of sale. Mortgaged premises may be sold as a single parcel where they were so mortgaged, even though they have been since subdivided by the mortgagor but without the mortgagee's concurrence; but where the parties have joined in obtaining the release of a parcel so situated as to leave the rest in distinct parcels and thus affect the security, the sale is void if not made in parcels.
Error to Berrien.
James A. Kellogg, for plaintiff in error.
O.W Coolidge, for defendant in error.
Fish was plaintiff in the court below, and sought to recover in ejectment the possession of certain premises in Niles which he claimed under a mortgage foreclosure. The mortgage which was foreclosed was given to him by one Moses Davis, and bore date May 15, 1865. The mortgaged premises were therein described as "all that part of the S.E. 1/4 of section 27 in town 7 south, of range 17 west, lying east of the Michigan Central Railroad and bounded south and east by section lines on the north by land owned and occupied by John B. Reddich and on the west by land owned and occupied by Charles H Griffith." June 6, 1865, Davis sold a parcel of the land extending entirely through the whole tract, and on paying to Fish the purchase price, obtained from him a release to the purchaser of the parcel sold. Later in the same year he platted the whole parcel into blocks and lots as an addition to the city of Niles, and the lot previously sold and released was designated as lot 7 of block 2. After thus platting his land Davis sold one of the lots to Durm. In June, 1874, Fish advertised the mortgaged premises for sale under the power contained in the mortgage, and in his notice described the land as in the mortgage with the following added: "Excepting and reserving from such all that portion of said premises which has been released from the lien of said mortgage, and which portion is now known and described as lot No. 7 in block No. 2 in Moses Davis' addition to the city of Niles." When the time of sale arrived the whole land as described in the notice of sale was offered in one parcel, and was struck off to Fish for the amount remaining unpaid. After the time for redemption had expired, this suit was instituted for the recovery of the lot which Durm had purchased and of which he was in...
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...Sherwood, (Mich.) 39 N.W. 740. The procedure followed, defeated appellants' redemption rights under Section 89-2969, R. S. 1931. Durm v. Fish, (Mich.) 9 N.W. 429; O'Connor v. Keenan, (Mich.) 94 N.W. Cole v. Canton Mining Co., 202 P. 830; 19 R. C. L. 575; McLaughlin v. Schmied, (Ky.) 12 S.W.......
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