Heimerdinger v. Heimerdinger

• Decision Date: 02 September 1941
• Docket Number: No. 80.,80.
• Citation: 299 N.W. 844,299 Mich. 149
• Parties: HEIMERDINGER et al. v. HEIMERDINGER et al.
• Court: Michigan Supreme Court

299 Mich. 149

299 N.W. 844

HEIMERDINGER et al.

v.HEIMERDINGER et al.

No. 80.

Supreme Court of Michigan.

Sept. 2, 1941.

Suit by Minnie M. Heimerdinger and another against Clarence G. Heimerdinger and others, to expunge and remove from the record the record of redemption from a mortgage sale which was recorded in the office of the register of deeds, Lenawee county. From a decree dismissing plaintiffs' bill, plaintiffs appeal.

Affirmed.

Appeal from Circuit Court, Lenawee County, in Chancery; G. Arthur Rathbun, Judge.

Argued before the Entire Bench.

Bourns & Bird, of Adrian, and Frank J. Riley, of Blissfield, for plaintiffs and appellants.

Glenn L. Williams, of Tecumseh, for defendants and appellees.

SHARPE, Chief Justice.

This is a chancery suit to expunge and remove from the record the record of redemption from a mortgage sale which was recorded in the office of the register of deeds, Lenawee county.

The material facts are not in dispute. In 1922, George Heimerdinger died intestate, leaving his widow, a son, and a daughter as his sole heirs at law. Part of his estate consisted of a farm of 153 acres, 6 acres of which are located in Lenawee county and the balance in Washtenaw county. The farm had been used as one parcel and one farm for many years. The county line runs directly through the dwelling house on the farm which consists of 10 or 12 rooms, is two stories in height, and has a central heating plant. It is not divided into apartments and is used as one dwelling house for one family. The county line passes through the sitting room and bed room down stairs and also cuts rooms upstairs. The front part of the house is in Lenawee county and the back part of the house is in Washtenaw county.

In 1923, the widow, Minnie M. Heimerdinger, and daughter, Anna C. Heimerdinger, sold their interest in the farm to the son, Clarence G. Heimerdinger, giving him a deed and taking back a mortgage in the sum of $10,933.33, which mortgage was recorded in the office of the register of deeds of Lenawee county. In 1932, the mortgage was foreclosed by advertisement. In accordance with the statute, a separate sheriff's deed was made of the Washtenaw county portion and a separate price bid placed thereon; and a separate sheriff's deed was made of the Lenawee county portion and a separate price bid of $801 placed thereon, which deed was recorded in the office of the register of deeds of Lenawee county.

About a week after the mortgage sale, defendant Clarence G. Heimerdinger deposited the sum of $801 plus interest with the Lenawee county register of deeds for the redemption of the parcel of land located in said county and the register of deeds wrote across the record of the sheriff's deed the words: ‘Redeemed January 19, 1933 by Clarence G. Heimerdinger. L. A. Warner, Register of Deeds.’

Subsequently and before the period of redemption expired, the Washtenaw county portion of the farm was made the subject of a moratorium suit. An order under the statute was made and the Washtenaw county portion of the farm remained under the moratorium until November, 1938, at which time plaintiffs went into possession of the Washtenaw portion of the farm and buildings.

In January 1940, plaintiffs filed a bill in chancery and asked that they be declared the owners of the Lenawee county land claimed to have been redeemed. Defendant Myrle S. Heimerdinger is the wife of Clarence G. Heimerdinger and defendant David Hicks is the present tenant of the six acres located in Lenawee county and holds by lease from Clarence G. Heimerdinger. Upon hearing, the trial court dismissed plaintiffs' bill.

Plaintiffs appeal and contend that if the lands located in two different counties comprise a single farm, the entire farm must be redeemed from the sale.

The mortgage having been foreclosed by advertisement in 1932, the law, relating to such foreclosure sale as of that date, reads as follows: ‘THE OFFICER OR PERSON MAKING THE SALE SHAll Forthwith execute, acknowledge, and deliver, to each purchaser a deed of the premises bid off by him; and if the lands are situated in several counties he shall make separate deeds of the lands in each county, and specify therein the precise amounts for which each parcel of land therein described was sold. And he shall endorse upon each deed the time when the same will become operative in case the premises are not redeemed according to law. Such deed or deeds shall, as soon as practicable, and within twenty (20) days after such sale, be deposited with the register of deeds of the county in which the land therein described is situated, and the register shall endorse thereon the time the same was received, and for the better preservation thereof, shall record the same at length in a book to be provided in his office for that purpose, and shall index the same in the regular index of deeds; and the fee for recording the same shall be included among the other costs and expenses allowed by law. In case such premises shall be redeemed, the register of deeds shall, at the time of destroying such deed, as provided in section twelve (12) of this chapter,...