Gage v. Sanborn
| Decision Date | 13 July 1895 |
| Citation | 64 N.W. 32,106 Mich. 269 |
| Court | Michigan Supreme Court |
| Parties | GAGE v. SANBORN. |
Error to circuit court, Saginaw county; Eugene Wilber, Judge.
Summary proceedings before a circuit court commissioner by William G Gage against Florence A. Sanborn to obtain possession of certain premises. Defendant prevailed before the commissioner, and plaintiff appealed to the circuit court. From a judgment for plaintiff, defendant brings error. Affirmed.
L. T. Durand and G. W. Davis, for appellant.
William G. Gage and Camp & Brooks, for appellee.
The defendant being in possession of certain premises, described as lots 3 and 10, and the north half of lots 2 and 11, of block 70, except two rooms on the second floor of the house thereon (which rooms were occupied by Marietta C. Sanborn) summary proceedings were begun by the plaintiff to obtain possession of the same. From a judgment in his favor, the defendant has appealed.
The record shows that the defendant's husband, Lewis Sanborn being at the time the owner of the entire premises, executed a mortgage thereon for $5,000, in which the defendant joined and delivered the same to the Savings Bank of East Saginaw, as collateral to two notes given said bank by said Lewis Sanborn. Said mortgage contained the usual power of sale, was executed on January 9, 1890, and was recorded the following day. On December 3, 1890, Sanborn and the defendant joined in a warranty deed of the premises to Sanborn's mother, Marietta C. Sanborn, subject to the mortgage mentioned, said deed containing the following provision, viz. "which said mortgage said second party assumes and agrees to pay." The consideration expressed in the deed was $6,000. Sanborn thereafter abandoned his wife, leaving her upon the premises, a portion of which was their homestead. Two or more other buildings stood upon the half lots. Litigation between Marietta and Florence A. Sanborn followed, and this court held that the instrument given to the former was by way of security, and, therefore, a mortgage. The opinion of the court will be found reported in 62 N.W. 371. Meantime Marietta C. Sanborn had paid $3,000 upon the mortgage of the bank, previous to January 11, 1893, at which time she informed the officials of the bank that she would pay no more upon the mortgage. This was communicated to the bank by the plaintiff, who said that the bank would foreclose if it wanted to. This it did, by advertisement, and at the sale bid in the premises,-the half lots, 2 and 11, with the two buildings thereon, described in the notice of sale as "Parcel 1," being sold first, for $687.52; and the remainder of the premises described, called "Parcel 2," upon which defendant lived, being sold for $2,500. The sheriff's deed was dated August 5, 1893. July 31, 1894, the bank executed an assignment of its interest in the mortgage, and a quitclaim deed of its interest in the premises, to the plaintiff, who instituted these proceedings to obtain possession, on August 9, 1894.
The point is made that the complaint is insufficient. In substance, it alleges that the defendant is in possession of the premises therein named, and holds the same unlawfully and against the rights of complainant, who is alleged to be lawfully entitled to the possession of the same. Under the decisions in the cases of Caswell v. Ward, 2 Doug. (Mich.) 374, and Bush v. Dunham, 4 Mich. 344, there might be room for this contention; but counsel have apparently overlooked the later cases of Bryan v. Smith, 10 Mich. 229, and Moody v. Seaman, 46 Mich. 76, 8 N.W. 711, which hold such a complaint sufficient.
We next consider the validity of the foreclosure proceedings:
The power of sale. It is said that the bank is a corporation of limited powers, and could not foreclose the mortgage by advertisement. No question is raised over the right of the bank to own this mortgage; and if it may, it must have the power to foreclose it by advertisement; if it can be so foreclosed while it is such owner. Counsel concede that some of the courts hold that "a corporation may execute such trusts as are coupled with an interest in the thing granted, or upon which the power is to operate"; but say that "it is fundamental that they cannot execute a power not coupled with an interest in that upon which the power is to operate." And they argue, upon the authority of Johnson v. Johnson (S. C.) 3 S. E. 606, that: "A mortgagee's interest in the property mortgaged is only in the proceeds of the property mortgaged, and it would not therefore be coupled with any interest in the equity of redemption, to which the contract or power of sale relates." But, if this can be said to be true in this state, (see Lee v. Clary, 38 Mich. 226, and Niles v. Ransford, 1 Mich. 338), we think the statute confers the power upon banks to foreclose by advertisement. 1 How. Ann. St. � 3142, provides that: etc. Again, 3 How. Ann. St. � 3208b provides that: Counsel for plaintiff forcibly suggest that the words "mortgage foreclosures" are unnecessary, and can be given no effect, if banks cannot foreclose by advertisement, as purchases at mortgage sales in other cases would be covered by the word "decrees."
Signature of the notice of sale: Objections are made to the validity of the sale for the alleged reasons: (1) That the notice was not signed by the mortgagee; (2) that it does not appear that the directors of the bank authorized the foreclosure. To the notice as published was affixed the name of the bank, also the name of the attorney. The evidence showed that this was done by the consent and authority of the directors, and the bank availed itself of the advantages arising from, and the results of, the sale. We are not cited to authority for the proposition that all the details of every-day business in banks must be considered in directors' meeting, and their action be spread upon the journal of the meeting. Such a practice would complicate the business of banking, and be at variance with the ordinary course of business as it is commonly done. To go further, and allow a debtor to question the regularity of proceedings on the part of the bank in such cases, would have little reason to support it. The notice was over the name of the bank, and informed the public of the prospective sale. It contained the statutory requisites of a valid notice, and, if its authenticity could be questioned, there is no reason why it should not be vindicated by parol testimony, the same as though the notice were that of a private person who had authorized an attorney to foreclose a mortgage. Unreasonable restrictions and intendments against statutory foreclosures should not be favored. Lee v. Clary, 38 Mich. 229.
Sale in parcels: It is next contended that the sale is invalid because the half lots included in parcel 1 were sold together. The mortgage described the premises as lots 3 and 10 and the north half of lots 2 and 11. From this description it does not appear that the land is not adjoining and used as one parcel. If so, it was proper to sell as one. Larzelere v. Starkweather, 38 Mich.
104; Lurm v. Fish, 46 Mich. 314, 9 N.W. 429. The cases cited by counsel for defendant are not at variance with this rule. If they were not adjoining, it devolved upon the defendant to prove it. Harris v. Creveling, 80 Mich. 252. But it was conceded that they were used as two, and the sale was made accordingly.
Excessive bid: It is said that the amount claimed to be due by the bank was excessive. The amount is not stated, but seems to have been the cost of one insertion of the notice of sale, which was published 13 times; the last being unnecessary. Gantz v. Toles, 40 Mich. 725; Bacon v. Kennedy, 56 Mich. 329, 22 N.W. 824. It has been held that where the mortgagee bid an excessive amount, that was claimed to be due, and failed to pay it over to the sheriff making the sale, the mortgagor was permitted to redeem on payment of the amount of the bid less the excess. Louder v. Burch, 47 Mich. 109, 10 N.W. 129. There is, however, no presumption that the sum bid was not paid over, and we are cited to no proof upon the subject. Millard v. Truax, 47 Mich. 251, 10 N.W. 358.
Having reached the conclusion that the foreclosure proceedings were valid, we will next inquire whether the purchase ripened into a title in plaintiff. This depends upon two questions: (1) Did the assignment of the mortgage operate to annul the foreclosure? (2) Were the quitclaim deed and assignment adequate to convey a title, redemption not having expired at...
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