McIntyre v. Wyckoff

• Decision Date: 23 March 1899
• Citation: 78 N.W. 654,119 Mich. 557
• Court: Michigan Supreme Court
• Parties: MCINTYRE v. WYCKOFF ET AL.

78 N.W. 654

119 Mich. 557

MCINTYRE v. WYCKOFF ET AL.

Supreme Court of Michigan

March 23, 1899

Appeal from circuit court, Huron county, in chancery; Watson Beach Judge.

Suit by John McIntyre against Frank H. Wyckoff and others. Decree for defendants, and complainant appeals. Affirmed.

January 23, 1893, complainant executed a mortgage to defendant Wyckoff for $1,750, upon two descriptions of land, each of which was occupied as a farm. One piece contained 120 acres. The second piece was described as follows: "The S. 1/2 of the S.E. 1/4, less one acre sold therefrom, of Sec. 19 Town, 15 N., R. 12 E." Complainant was unable to pay the interest due upon this mortgage at the end of a year, and executed another mortgage, for $150, upon the same land, to Mr. Wyckoff. This mortgage, however, included the whole of the S. 1/2 of the S.E. 1/4 of section 19. It contained the usual covenants of warranty. Complainant paid neither interest, principal, nor taxes. In 1895 proceedings were taken to foreclose the second mortgage by advertisement. The proceedings were regular, and the land was sold pursuant to the notice, on June 17, 1895, to defendant Wyckoff. Complainant did not redeem. On March 22, 1897, defendant Wyckoff served a notice upon complainant to surrender up possession of said premises. Thereafter, and on June 7, 1897 complainant filed this bill, praying that the sale of said premises be set aside, as null and void, that an accounting be had to determine the amount due upon said mortgages, and that the tax certificates and deeds issued by the auditor general be canceled. The case was heard upon pleadings and proofs taken in open court, and decree rendered dismissing the bill of complaint, but permitting the complainant to redeem by the payment of the amount determined by the decree to be due to the defendant within 20 days from the date thereof. From this decree, complainant appeals.

Hiram L. Chipman (Bacon & Palmer, of counsel), for appellant.

W. T. Bope, for appellees.

GRANT C.J. (after stating the facts).

The reasons given in the bill of complaint upon which complainant seeks relief are these: (1) The lands were sold for an amount in excess of the amount due on the mortgages. (2) The sale is void because the equity of redemption in the lands was divided, and sold as two parcels. (3) Because the second parcel was sold as one parcel, whereas it should have been sold in two, viz. the one-acre piece, and the balance excluding this acre. (4) Because there was an agreement made at the time of the foreclosure sale between complainant and one Ryan, who acted for Wyckoff in the foreclosure proceedings, that, if he (complainant) would make no contest or unnecessary expense, Wyckoff would bid the property in, sell it, retain the amount due him on the two mortgages, and pay the balance to complainant.

1. Complainant...