Miller v. Reid
| Decision Date | 24 July 1928 |
| Docket Number | No. 94.,94. |
| Citation | 243 Mich. 694,220 N.W. 748 |
| Parties | MILLER v. REID. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wayne County, in Chancery; Vincent M. Brennan, Judge.
Suit by Frank P. Miller against W. G. Arthur Reid. From a decree of dismissal, plaintiff appeals. Affirmed.
Argued before the Entire Bench, except POTTER, J.Albert McClatchey, Harry J. Weber, and Firemon Lush, all of Detroit, for appellant,
C. W. Videan, of Detroit, for appellee.
The Frank P. Miller Corporation gave defendant a real estate mortgage for $5,000. The mortgage was foreclosed by advertisement, and the premises bid in by defendant for the amount of the mortgage, interest, attorney fee, and costs. The last day for redemption plaintiff paid to the register of deeds the necessary sum to redeem and defendant accepted the money. The same day plaintiff filed the bill herein, alleging that but $4,000 was obtained on the mortgage and $500 of that had been paid; that the redemption money was deposited with the register of deeds to prevent default in making redemption and not as a voluntary payment, and asked that the foreclosure be held void and the court determine the amount due on the mortgage and permit plaintiff to recover the excess paid to the register of deeds. On special motion of defendant, the bill was dismissed and plaintiff appealed.
The bill also alleged that the Frank P. Miller Corporation was owned by plaintiff and operated by him in carrying on his real estate business; that the mortgage was given in the name of the corporation, but was plaintiff's affair, and the corporation had, after giving the mortgage, deeded the property to plaintiff. Plaintiff claims that payment was made to the register of deeds under duress.
Under the law, the payment worked redemption, and one question is whether, having served such purpose, it may be employed to also bring to hearing the subject of alleged usury and part payment.
This is not a bill to redeem, for redemption has been had. Plaintiff did not take the chance of tendering the sum he claimed due on the mortgage and then asking the court of equity to permit redemption, but paid to the register of deeds the full amount claimed to be due for which foreclosure had been made.
The Legislature, by Act No. 335, Public Acts 1927, pt. 2, c. 1, § 1, provided that:
‘No corporation shall interpose the defense of usury to any cause of action hereafter arising.’
This act was effective when plaintiff made redemption. Statutes of similar import exist in some other states, and have been held to be remedial in nature and entitled to a liberal construction. Rosa v. Butterfield, 33 N. Y. 665, 669.
As stated in a note in 14 Ann. Cas. 115:
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