Martin v. McReynolds

• Decision Date: 01 December 1858
• Citation: 6 Mich. 70
• Court: Michigan Supreme Court
• Parties: E. T. Throop Martin and another v. Andrew T. McReynolds and others

6 Mich. 70

E. T. Throop Martin and another v. Andrew T. McReynolds and others

Supreme Court of Michigan

December 1, 1858

Heard November 24, 1858

Appeal, by defendant O'Flynn, from the Wayne Circuit in chancery.

The case is sufficiently stated in the opinion of the court.

Decree affirmed with costs.

C O'Flynn, defendant, in person.

T. W Lockwood, for complainants.

Manning J. Christiancy and Campbell, JJ. concurred. Martin, Ch. J. did not hear the argument.

OPINION

Manning J.:

Martin & Townsend, and one Ten Eyck, since deceased, on the 30th of October, 1852, filed a bill in the Circuit Court of Wayne county to foreclose a mortgage, executed to the Farmers & Mechanics' bank by McReynolds and O'Flynn, and assigned by the bank to complainants. On the 1st of June, 1855, a petition was presented to the court by Martin & Townsend, stating the death of Ten Eyck after the filing of the bill, and that the cause of action survived to them, and praying an order allowing the suit to proceed in their names as survivors, which was granted by the court. Three days thereafter they filed an amended bill, in which Long, Campbell, McKinney, Halpin, Gray and Probart, the other defendants, were made parties as subsequent purchasers or incumbrancers. On the 3d September following, an order was entered by complainants, dismissing the bill as to McKinney, and taking it as confessed against all of the other defendants, except O'Flynn who had appeared and filed a demurrer to the bill on the 3d August. The demurrer was brought to a hearing in October, 1857, when an order was made overruling the demurrer, and taking the bill as confessed by O'Flynn, and directing a reference to ascertain the amount due complainants on the bond and mortgage; and on the coming in and confirmation of the report of the Circuit Court Commissioner, the usual decree was entered, from which O'Flynn appealed to this court, and now asks reversal of the decree on several grounds:

1st, That the personal representative of Ten Eyck was not made a party. The interest of the assignees in the bond and mortgage was the interest the bank had. In other words, they stood in the position of mortgagees, and on the death of Ten Eyck, his interest in the mortgage, as well as in the debt, survived to complainants. Mortgages are, in express terms, excepted in the statute requiring grants to two or more persons to be construed to create estates in common: Comp. L., §§ 2628, 2629. Hence in Cote v. Dequindre, Walk. Ch., 64, it was held a bill might be filed by a surviving mortgagee to foreclose a mortgage without making the personal representative of a deceased co-mortgagee a party. In Vickers v. Cowell, 1 Beav. 5291, the personal representative was held to be a necessary party, as he would, in equity, be entitled to the decedent's share of the debt, when collected. The reason given for the decision is true in point of fact, but the consequence deduced from it does not follow. When the object of the bill, as in that case and the one in Walker, and as in the case before us, is to obtain possession of the trust property by the trustee, to enable him to execute the trust, and the rights of the cestui que trust are in no way to be affected by the suit, he need not be made a party: Sill v. Ketchum, Harr. Ch., 423; Cook v. Wheeler, Harr. Ch., 443; Morey v. Forsyth, Walk. Ch., 465. Sill v. Ketchum was a bill filed by Sill to foreclose a mortgage assigned to him in trust for third persons, who, it was objected, should be made parties. Chancellor Farnsworth overruled the objection, and sustained the bill.

2d. That the assignment, as stated in the bill, does not show a legal title to the mortgage in the assignees; that is, does not show such an assignment as would authorize them to quit-claim the mortgaged premises, or discharge the mortgage of record. An assignment must be recorded before steps can be taken by an assignee to foreclose a mortgage at law, by advertisement, under a power of sale contained in the mortgage: Comp. L., § 5178. But it is not necessary to a foreclosure in chancery. A bill may be filed to foreclose a mortgage by one having an equitable right to it only. A debt secured by a mortgage, when assigned, carries with it, in equity, the mortgage as an incident to the debt, and the assignee may file a bill to foreclose the mortgage: Green v. Hart, 1 Johns. 586; Patterson v. Hull, 9 Cow. 747; Cooper v. Ulman Walk. Ch., 251. In such, and the like cases, the mortgagee, or person holding the legal right to the mortgage, should be a party, that there may be some one before the court to release the mortgaged premises, or discharge the mortgage of record, on payment of the debt by the mortgagor. The amended bill states, that on the first of April, 1852, the bond and mortgage were "duly sold, assigned, and set over by the said mortgagees" to complainants, and Ten Eyck, who died after the filing of the original bill, etc., and that complainants are "the owners and holders thereof, and entitled to have and receive all moneys due thereon, as by reference to an instrument of assignment under the corporate seal of the said corporation, and now in the possession of your orators," will...