Harrow v. Metro. Life Ins. Co., 36.

• Decision Date: 30 June 1938
• Docket Number: No. 36.,36.
• Citation: 285 Mich. 349,280 N.W. 785
• Parties: HARROW et ux. v. METROPOLITAN LIFE INS. CO.
• Court: Michigan Supreme Court

285 Mich. 349

280 N.W. 785

HARROW et ux.

v.METROPOLITAN LIFE INS. CO.

No. 36.

Supreme Court of Michigan.

June 30, 1938.

Proceedings by Alfred T. Harrow and wife against the Metropolitan Life Insurance Company for relief under the Moratorium Act, Pub.Acts 1935, No. 3, §§ 2, 3; No. 158, § 4. From a moratorium order as amended, plaintiffs appeal.

Amendment set aside and order as previously amended continued in force.

NORTH, J., WIEST, C. J., and BUSHNELL, J., dissenting.Appeal from Circuit Court, Wayne County, in Chancery; Guy A. Miller, judge.

Argued before the Entire Bench.

Wilkinson, Lowther & O'Connell, of Detroit (Donald B. Smith, of Detroit, of counsel), for appellants.

Bulkley, Ledyard, Dickinson & Wright, of Detroit (Charles W. Bishop, of Detroit, on the brief), for appellee.

POTTER, Justice.

Alex McLuckie and Elizabeth McLuckie, his wife, owned real estate in McMillan Grosse Pointe subdivision and May 23, 1929, executed a real estate mortgage thereon to the Union Trust Company, of Detroit, to secure a loan of $8,000. July 12, 1929, the Union Trust Company assigned this mortgage to the Metropolitan Life Insurance Company, a New York corporation. The mortgage and assignment were duly recorded. Plaintiffs allege:

‘That the plaintiffs purchased the said premises in the month of December, in the year 1929, on a land contract, paying therefor the sum of sixteen thousand five hundred ($16,500.00) dollars, of which amount two thousand two hundred fifty ($2,250.00) dollars was paid at the time of signing of said contract and the plaintiffs herein gave their vendors a ninety-day note for three thousand ($3,000.00) dollars and assumed the mortgage of eight thousand ($8,000.00) dollars and agreed to pay the difference between the then balance of eleven thousand ($11,000.00) dollars and the mortgage or the sum of three thousand ($3,000.00) dollars within six (6) months from the date of the contract.’

Plaintiffs occupied the premises as a homestead.

Default was made in the terms of the mortgage, defendant foreclosed by advertisement, the premises were sold at mortgage sale October 24, 1934. Plaintiffs instituted proceedings for relief under the moratorium act and October 18, 1935, an order was entered enjoining defendant from taking any action to acquire possession, fixing the fair rental value of the premises at $65 a month, directing such sum to be paid to the Greater Detroit Mortgage Corporation, defendant's agent. Plaintiffs were required to pay the water rates during the continuance of the injunction and maintain the premises in good repair. Defendant's agent was to apply the moneys it received to the payment of taxes and insurance. Any balance was to be deducted from the sum necessary to redeem (purchaser's bid at foreclosure sale, with interest at 7 per cent per annum from date of sale, and any moneys advanced by defendant for taxes, insurance, repairs from such time). If no redemption was made, any balance was to be surrendered to it as rent for use and occupancy of said premises by plaintiffs during said moratorium. The court reserved the right to modify the order on its own or any party's motion.

May 22, 1937, defendant filed a motion to amend the moratorium order by increasing the fair rental terms to $80 a month. The order was so amended June 4, 1937. The court at this time denied a motion to further amend the first order and ‘to direct Greater Detroit Mortgage Corporation to pay to Metropolitan Life Insurance Company from the balance of the moneys remaining in its hands after the payment of taxes and insurance premiums the sum of one thousand two hundred sixteen and 75/100 dollars ($1,216.75), in satisfaction of that portion of the mortgage debt which was not satisfied by the sheriff's sale.’

November 6, 1937, defendant again sought to have the original order amended substantially as requested and refused in June, 1937, and the court then so amended the order.

The trial court in effect gave defendant a deficiency decree equal to $80 a month, less the amount paid for taxes and insurance, as the rest was to be applied on the interest accrued prior to the sheriff's sale and on the principal of the mortgage, which amount in the prior order went as part payment of the amount bid at the foreclosure sale plus interest, and to defray any cost to defendant for repairs since the sale, if the plaintiffs elected to redeem. Plaintiffs contend the trial court was in error in so doing.

Defendant says:

‘Sections three and four are independent legislation and neither section is prescribed or enlarged by the other. Furthermore, the order appealed from is not a deficiency judgment or decree, but a mere modification of an order extending the right to redeem, and directing the distribution of funds which were in custodia legis as well as the distribution of future payments.’

A deficiency has been defined as ‘that part of a debt which a mortgage was given to secure and not realized from the sale of the mortgaged property.’ 1 Bouv.Law Dict., Rawle's 3d Rev., p. 817.

When the lower court ordered money to be paid to reduce the $1,216.75 debt, not included in the amount bid at the foreclosure sale, it made provision for defendant to recover in part the difference between the sale price and the actual amount of the debt. Defendant says in its brief:

‘There is no prohibition against a deficiency decree, as no decree of foreclosure will or can be entered. The sole relief which can be granted under section four is the entry of an order extending the time during which redemption may be made.’

Defendant further says:

‘The relief in the instant case was sought and granted under section 4 of the moratorium act, which is an independent section, vesting jurisdiction in the chancery court to make an order extending the time to redeem from a sale which has been held in an advertisement foreclosure.’

The power to render a personal decree against the makers of a real estate mortgage, or against others charged with its payment, comes entirely from the statute. Winsor v. Ludington, 77 Mich. 215, 43 N.W. 866;Vaughan v. Black, 63 Mich. 215, 29 N.W. 523;McCrickett v. Wilson, 50 Mich. 513, 15 N.W. 885;Kelly v. Gaukler, 164 Mich. 519, 129 N.W. 703;Kollen v. Sooy, 172 Mich. 214, 137 N.W. 808. This is the general rule elsewhere. 2 Pingrey on Mortgages, § 2031; 3 Jones on Mortgages (8th Ed.), § 2210; 1 Wiltsie on Mortgage Foreclosure (4th Ed.), § 411; 2 Wiltsie on Mortgage Foreclosure (4th Ed.), § 956.

The statute (3 Comp.Laws 1929, § 14366) provides:

‘In foreclosure cases in the original decree therein, the court shall determine and decree as to which defendants, if any, are personally liable for the mortgaged debt, and it shall be provided in such decree that upon the coming in and confirmation of the commissioner's report of sale, if there be any part of the money decreed to be due, * * * upon the sale of the premises, the clerk of the court shall, * * * issue execution for the amount of such deficiency.’

This is the only statute which authorizes a deficiency decree.

A deficiency on the foreclosure of a mortgage by advertisement is to be recovered, if at all, by suit at law. New York Life Ins. Co. v. Erb, 276 Mich. 610, 268 N.W. 754.

The trial court had no general equitable jurisdiction over this deficiency in the moratorium proceedings here involved.

Sections 2, 3 and 4 of Act No. 1, Pub.Acts 1937, are identical, with the exception of dates, with sections 2 and 3 of Act No. 3, Pub.Acts 1935, and section 4 of Act No. 158, Pub.Acts 1935, which were effective when plaintiffs filed their bill for relief under the moratorium act. Section 4 reads in part:

‘In any case of foreclosure of mortgage by advertisement pending on June two, nineteen hundred thirty-three or thereafter commenced, in which the sale has been held but the period within which the right of redemption might be exercised has not expired, the court, upon the application of any person or persons liable upon said mortgage, or having any other mortgage or lien on, or interest in any of the real estate covered by such mortgage, may make an order extending the time within which the right of redemption might be exercised until not later than [March one, nineteen hundred thirty-seven-in the 1935 act; November one, nineteen hundred thirty-eight-in the 1937 act]. Every such order shall make provision for possession and fair rental terms as required under section two of this act.’

Section 3 of the 1935 act provides for the transfer of proceedings to chancery where the mortgage is being foreclosed by advertisement. This section provides:

‘In no case where the proceedings originated by advertisement shall a deficiency judgment or decree be entered: Provided further, That no action shall be taken to enforce a deficiency judgment entered after January one, nineteen hundred thirty-three, or that may be hereafter entered, until after March first, nineteen hundred thirty-seven.’ (November first, nineteen hundred thirty-eight-1937 act.)

The affirmative restriction on the part of the chancery court to enter deficiency judgment or decree under the facts mentioned in section 3 cannot be construed as an...