Kittermaster v. Brossard

• Decision Date: 30 April 1895
• Citation: 105 Mich. 219,63 N.W. 75
• Court: Michigan Supreme Court
• Parties: KITTERMASTER v. BROSSARD ET AL.

63 N.W. 75

105 Mich. 219

KITTERMASTER v. BROSSARD ET AL.

Supreme Court of Michigan

April 30, 1895

Appeal from circuit court, Wayne county, in chancery; Robert E Frazer, Judge.

Action by Frederick W. Kittermaster, executor of the estate of Julia M. Salter, deceased, against Hubert Brossard and another, to foreclose a mortgage. From a decree disallowing certain attorney's fees, complainant appeals. Affirmed.

Walker & Walker, for appellant.

HOOKER J.

Complainant appeals from a pro confesso decree of foreclosure, and the only question raised by the record is his right to have the decree increased by including a fee of $40, provided for by the following clause in the mortgage: "And it is further expressly agreed that as often as any proceeding is taken to foreclose this mortgage, either by virtue of the power of sale herein contained or in chancery, or in any other manner provided by law, said first parties shall pay said second party forty dollars, as a reasonable solicitor and attorney fee therefor, in addition to all other legal costs, and will keep said mortgaged premises insured for the benefit of said second party." It seems to be the settled law of Michigan that provisions for attorney's fees in instruments are void, except where expressly sanctioned by statute. This rule is asserted in cases of stipulated attorney's fees in promissory notes in the case of Bullock v. Taylor, 39 Mich. 137, where such provisions were held void, as a stipulation for a penalty and opposed to the policy of our laws as to attorney's fees. See, also, Wright v. Traver, 73 Mich. 495, 41 N.W. 517. Numerous cases support the rule as applied to stipulations for attorney's and solicitor's fees in mortgages. Van Marter v. McMillan, 39 Mich. 304; Myer v. Hart, 40 Mich. 517; Canfield v. Conkling, 41 Mich. 371, 2 N.W. 191; Parks v. Allen, 42 Mich 482, 4 N.W. 227; To view preceding link please click here Vosburgh v. Lay, 45 Mich. 455, 8 N.W. 91; Millard v. Truax, 47 Mich. 251; 10 N.W. 358; Id., 50 Mich. 343, 15 N.W. 501; Kennedy v. Brown, 50 Mich 336, 15 N.W. 498; Sage v. Riggs, 12 Mich. 313; Hardwick v. Bassett, 29 Mich. 17; Damon v. Deeves, 62 Mich. 469, 29 N.W. 42; Louder v. Burch, 47 Mich. 111, 10 N.W. 129; Botsford v. Botsford, 49 Mich. 31, 12 N.W. 897. It is contended that a court of equity may impose a reasonable solicitor's fee, as has been done by this court in cases cited. 2 How. Ann. St. � 6623, authorizes the supreme court to establish rules of practice for the circuit courts in chancery with a view to "the diminishing of costs," among...