Guardian Depositors Corp. v. Hebb
| Decision Date | 06 July 1939 |
| Docket Number | No. 75.,75. |
| Citation | 290 Mich. 427,287 N.W. 796 |
| Parties | GUARDIAN DEPOSITORS CORPORATION OF DETROIT v. HEBB. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action at law by the Guardian Depositors Corporation of Detroit against George K. Hebb to recover an alleged deficiency on a note and mortgage after foreclosure and sale of mortgaged property. Judgment for defendant, and plaintiff appeals.
Affirmed.
Appeal from Circuit Court, Wayne County; Guy A. Miller, judge.
Argued before the Entire Bench.
Bodman, Longley, Bogle, Middleton & Farley, of Detroit, for appellant.
Younglove & Chockley, of Detroit (Karl B. Goddard, of Detroit, of counsel), for appellee.
Robert S. Marx, Lawrence I. Levi, and Ethan C. Prewitt, all of Detroit, for B. C. Schram, receiver of First Nat. Bank-Detroit, amicus curiae.
Plaintiff sued defendant to recover a deficiency claimed to be due upon a note and mortgage after forecloure and sale of the mortgaged property by advertisement. Plaintiff was the owner and holder, for value, of the note and mortgage in question and purchased and acquired the premises at mortgage sale. The note and mortgage were given by defendant April 25, 1927, for $15,000, due three years after date. The property in question was sold at mortgage foreclosure sale for $7,500, and plaintiff claims the amount due on the covenant to pay included in the mortgage, with interest to March 15, 1937, was $4,878.12 in excess of the sale price of the real estate on foreclosure.
The real estate mortgage given to secure the payment of the note provided:
‘Said mortgagors, for themselves and their heirs, executors and administrators, do hereby covenant and agree to and with the said mortgagee and its successors and assigns:
Other provisions of the mortgage provided for the payment of the principal sum of $15,000 three years after date in semiannual payments of not less than $750, together with interest thereon at the rate of six per cent per annum payable semiannually, until the full payment of the principal sum, according to the terms of the promissory note of even date, the payment of which it was given to secure.
Defendant in his answer alleges the note matured April 25, 1930. This suit was brought April 10, 1937. Suit upon the note was barred by the statute of limitations. Defendant sold the property covered by the mortgage October 13, 1927, and conveyed the same to Paul C. Dulitz, by deed recorded October 14, 1927. Thereafter, the mortgagee gave all notices to Dulitz, and not to defendant who had no notice or knowledge the mortgage had not been paid until June, 1934, when foreclosure proceedings were instituted which resulted in a mortgage sale of the premises September 14, 1934.
In the deed given by defendant, and accepted by Dulitz, conveying the premises, there was no assumption of the payment of the mortgage by the grantee.
On the trial, plaintiff's counsel relied upon the express covenant to pay in the mortgage. Suit was brought within the ten-year period, and the six-year statute of limitations is not applicable. 3 Comp.Laws 1929, §§ 13282, 13976; Clinton v. Clinton's Estate, 148 Mich. 496, 111 N. W. 1087;Paepcke v. Paine, 253 Mich. 636, 235 N.W. 871, 75 A.L.R. 1205.
From a judgment for defendant, plaintiff appeals.
Defendant invokes Act No. 143, § 1, Pub.Acts 1937, which provides: ‘When, in the foreclosure of a mortgage by advertisement, any sale of real property has been made after February eleven, nineteen hundred thirty-three, or shall be hereafter made by a mortgagee, trustee, or other person authorized to make the same pursuant to the power of sale contained therein, at which the mortgagee, payee or other holder of the obligation thereby secured has become or becomes the purchaser, or takes or has taken title thereto at such sale either directly or indirectly, and thereafter such mortgagee, payee or other holder of the secured...
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Talmer Bank & Trust v. Parikh
...appraisal would be an almost necessary evidentiary tool to determine true value under MCL 600.3280. See Guardian Depositors Corp. v. Hebb, 290 Mich. 427, 432–433, 287 N.W. 796 (1939) (reviewing and accepting an appraiser's testimony in a deficiency action brought under the predecessor to MC......
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Guardian Depositors Corp. v. Powers
...1937, Mason's Comp.Laws Supp.1940, § 14444-21 et seq., Stat.Ann.Cum.Supp. § 27.1335 et seq., quoted in Guardian Depositors Corporation v. Hebb, 290 Mich. 427, at page 430, 287 N.W. 796, she has the right to set off the difference between the amount bid and the fair value of the property at ......
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Bank of Three Oaks v. Lakefront Properties
...at a foreclosure sale for an amount equal to the amount due on the mortgage, the debt is satisfied. Guardian Depositors Corp. v. Hebb, 290 Mich. 427, 432, 287 N.W. 796 (1939); Powers v. Golden Lumber Co., 43 Mich. 468, 471, 5 N.W. 656 (1880). Moreover, the mortgage is extinguished at the ti......
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Guardian Depositors Corp. v. Darmstaetter
...raised by plaintiff as to ‘fair value’ are substantially the same as those raised by this same plaintiff in Guardian Depositors Corporation v. Hebb, Mich., 287 N.W. 796, decided July 6, 1939, which, although not res adjudicata, is controlling of this phase of the instant case. The trial jud......