Flanders v. Chamberlain

• Decision Date: 03 April 1872
• Citation: 24 Mich. 305
• Court: Michigan Supreme Court
• Parties: Horace Flanders v. Henry Chamberlain

24 Mich. 305

Horace Flanders v. Henry Chamberlain

Supreme Court of Michigan

April 3, 1872

Heard January 8, 1872

Appeal in chancery from Cass circuit.

Complainant recovered costs in both courts.

Edward Bacon and Daniel Blackman, for complainant.

H. H Coolidge & Son, for defendant.

OPINION

Christiancy, Ch. J.

This case comes before us by appeal from the circuit court for Cass county, in chancery, where the bill was dismissed with costs.

The bill sets forth substantially that, in February, 1868, complainant was employed to farm the land of defendant; that to enable him to carry on said farm, defendant sold him certain personal property and became surety for him by signing notes given to other persons for personal property bought of them; that the amount of both liabilities was about the sum of eight hundred and fifty dollars; that, in order to secure defendant the sums owing to him and those for which he was surety, complainant, on the 29th day of February, 1868, executed to him a chattel mortgage upon certain personal property, viz.: three-fifths of fifty acres of wheat put in by him on shares on said farm, two horses, half the wool on one hundred sheep on the farm, half of fifty store hogs on the farm, one lumber wagon and one set of double harness; that on the 10th day of November, 1868, there was due on said notes to said defendant about four hundred and forty-six dollars and sixty-six cents (which is claimed to be the whole amount then secured by the mortgage); that defendant at the same date was indebted to complainant upon an award dated November 5, 1868, in the sum of three hundred and sixty-five dollars and twenty-two cents, payable on the tenth of that month; that, for the purpose of satisfying said chattel mortgage by the payment of said notes, complainant, on said tenth of November, tendered to defendant the said sum of three hundred and sixty-five dollars and twenty-two cents, by offering to offset the sum to that amount on said indebtedness, and offering him the balance then due on the mortgage in United States legal tender treasury notes, which defendant refused to accept; claims that this tender discharged the lien of the mortgage; but avers that defendant, on the 20th of November, took and carried away the wagon, horses, and harness mentioned in the mortgage, and secreted them, but gave complainant notice of his intention to sell the same; that on the 30th of November, defendant took possession of forty fat hogs (parcel of the fifty), and holds the same with the intention of selling them; avers that the value of the property so taken was eight hundred and fifteen dollars. It prays for an injunction, and that the lien of said mortgage may be decreed to be satisfied, and the defendant ordered to return the property; and that complainant "may have such other and such further relief as the nature of his case may require and as may be agreeable to equity and good conscience."

The defendant answers, admitting the mortgage as stated, that the debts for which he had become surety had been paid by the complainant, and that the complainant's indebtedness to him was correctly stated in the bill, except that the note of two hundred and twenty dollars and fifty cents bears interest [which a reference to the note shows would make the sum claimed by the defendant to be due him seventeen dollars and forty-five cents more than stated in complainant's bill], and that on the 20th day of November there was due him on the mortgage four hundred and sixty or four hundred and seventy dollars; that there was also an obligation of the complainant to deliver to defendant thirty-three shoats, which would have been of the value of three hundred and fifty dollars; denies that on the tenth of November he was indebted to complainant in the sum of three hundred and sixty-five dollars and twenty-two cents, on an award payable to complainant; admits that they had undertaken to arbitrate their differences as to matters other than the mortgage, and that they each executed a bond to the other to abide the award; but avers that the arbitrators did not award in accordance with the submission, but that they did pretend to award that defendant should pay complainant three hundred and sixty-five dollars and twenty-two cents by the tenth of November, and further awarded that complainant should deliver to defendant thirty-three shoats as specified in farm contract; claims that the award is void, and further, that the matters submitted to the arbitrators were wholly disconnected with the debts secured by the mortgage; and that there never was any agreement that the award should apply upon the mortgage.

He admits that, on the tenth November, complainant called on him and said he wanted to take up the mortgage; that defendant asked him if he had the money, to which he replied, "I have the award, and the balance in money;" but did not deliver or attempt to deliver said shoats; and that defendant refused to receive the same in satisfaction of the mortgage; but how much money complainant had, or whether he had any, defendant is not informed; that defendant did not deem himself safe until the shoats were delivered, and was not disposed to trust him to deliver them at some future time, admits that, not deeming himself safe to leave the property longer in complainant's possession, he procured a constable to take the property; denies that it was concealed; says that he advertised it for sale, etc.; but it was not sold.

Evidence was taken by both parties, and the case was heard upon the merits; but the objection is taken by the defendant that the bill makes no case for equitable relief; but that it states a case for which, admitting it to be true, the complainant has a full, adequate and complete remedy at law, and that the bill ought to be dismissed on this ground.

It is undoubtedly true that a tender of the full amount due destroys the lien of a mortgage, and complainant, after such tender, might have brought his action of trover or replevin for the property: Moynahan v. Moore, 9 Mich. 9; Caruthers v. Humphrey, 12 Mich. 270; Van Husan v. Kanouse, 13 Mich. 303; and so far at least as it relates to the specific relief prayed by the bill, it might doubtless have been demurred to on this ground.

But, as the defendant, instead of demurring, saw fit to answer (and without claiming the benefit of a demurrer), and both parties have introduced evidence upon the whole merits of the case, and the bill contains the general prayer for such other or such further relief as the nature of the case may require; if it states substantially a case proper for any equitable relief which is within the equitable powers of the court to grant (Bennett v. Nichols, 12 Mich. 22); and if the evidence supports the case so made, the bill should not be dismissed on this ground.

If, therefore, upon principles recognized by courts of equity, the complainant had the equitable right to redeem the mortgaged property after the condition of the mortgage had become forfeited by non-payment at the day, and after defendant had taken possession of it under the mortgage--a question we shall presently consider--then this bill we think contains all the substantial requisites of a bill to redeem. It sets forth the facts upon which such right depends. And though it does not in so many express words offer to pay what may be found due upon the mortgage debt, it alleges that a certain amount was due on the 10th of November, and that complainant had offered to pay that amount, which, under the circumstances of the case, when the question arises upon a hearing upon the evidence and the merits, should be treated as a general allegation of an offer to pay what was due; and the answer admits in so many words, the offer of complainant to pay the whole sum by applying the award and paying the balance in cash; and whether the award was such as would constitute a payment or offset thus far, would be a mere question of evidence, the allegation not being demurred to. And the complainant's general prayer for other and further relief must be treated as a prayer to be allowed to redeem, that being the appropriate and only equitable relief, if any, which the case would entitle him to: Schwarz v. Sears, Walker's (Mich.) Ch. R., 170, and cases cited: Barton v. May, 3 Sandf. Ch., 450; Bartlett v. Fellows, 47 Me. 53.

This then is a prayer to be allowed to redeem; and the substantial and only substantial meaning of such a prayer is to be allowed to redeem by paying whatever may be found due upon the mortgage. And it makes no difference in this respect that the complainant may claim by his bill to have already paid the whole--as this is always open to denial by defendant; and when denied as in this case, the fact whether any thing, and how much, is due, is put in issue; and if any thing should be found due the prayer to be allowed to redeem must still, on a hearing, be construed as a prayer to be allowed to redeem by paying what may thus be found due.

The more important question is: Had complainant an equitable right to redeem after the breach of the condition of the mortgage by the failure to pay at the day, and after defendant had taken possession of the property under the mortgage?

We held in Van Brunt v. Wakelee, 11 Mich. 177, that notwithstanding the mortgage had become absolute by the breach of the condition to pay at the day, the mortgagor might maintain a bill to redeem at any time before foreclosure by sale, or taking possession by the mortgagee. This was as far as the facts of that case required us to go to maintain the right of redemption; as, in that case, there had been no sale, and though the mortgagee came upon the plaintiff's premises and took possession, or claimed to do so, of the...